Category: Remoteness / Foreseeability

Claim For Relationship Breakdown As A Result Of Accident Deemed Too Remote


In Shinkaruk v. Crouch, the Plaintiff recovered damages at trial for aggravation of a pre-existing back injury. The effects of his injuries eventually caused the break-up of his relationship as well, however the Court held that such a claim would be too remote.




[58]        As I noted above, Ms. Wahlwroth also testified as to the circumstances of their breakup in December 2006. That was not their first breakup; they had separated in the summer of 2005 for a month or two. After that, the relationship had its ups and downs.




[59]        It was apparent from Ms. Wahlwroth’s description of their interaction with each other, during the period in which Mr. Shinkaruk was convalescing from the accident, that their disagreements were largely a function of the two of them having very different visions of their roles and responsibilities within their relationship. It may be that these differences did not become manifest when the two of them had different working schedules. But with Mr. Shinkaruk at home in the evenings, she testified that she found it difficult to have him there without him making any contributions to the housework, making meals, cleaning up dishes, and doing other tasks which she felt he was physically capable of. She contrasted his lack of contribution with efforts made by husbands of friends of hers, when the couples had dinner together. Their differences were compounded by their poor communication skills, and they became trapped in a cycle of angry arguments, sniping and a lack of mutual respect. This climaxed during the December 2006 family vacation, when they spent little time in each other’s company, and had heated arguments when they did. She did not want her 13 year-old son exposed to that kind of behaviour, and that was a key consideration in her asking Mr. Shinkaruk to leave. These communication problems are issues which, she testified, they have both done a lot of work on recently and now that they are seeing each other again, there is a greater deal of emotional maturity being exhibited by both of them.




[60]        It appears from the evidence that the most that could be said is that the motor vehicle accident contributed to the breakup in that it created a living situation, with Mr. Shinkaruk at home convalescing, in which fundamental and deep-seated issues between this couple became manifest. To the extent that Mr. Shinkaruk may have suffered emotionally or psychologically due to their breakup in December 2006, the defendant’s negligence is too remote to create liability.

Court Discusses Law Of Remoteness And Foreseeability

In Deros v McCauley, the Plaintiff sued for damages for psychological injuries he claimed he sustained after witnessing a motor vehicle accident. The Court dismissed his claim, and discussed the area of law of remoteness and reasonable foreseeability.


[13]           For the following reasons, I have determined that the harm Mr. Deros suffered was too remote to be reasonably foreseen and, consequently, he cannot recover damages from Mr. McCauley.


[14]           While there is no doubt that the defendant was negligent in causing the motor vehicle accident Mr. Deros witnessed, I am not satisfied that a person of ordinary fortitude would suffer a mental injury from witnessing the accident.


[15]           As stated in Mustapha v. Culligan of Canada Ltd., 2008 SCC 27, even if a defendant is found to have breached a duty owed to the plaintiff, the court must look at whether the damages the plaintiff suffered as a result of the breach are too remote to be recoverable.


[16]           In determining whether a damage is too remote, the plaintiff is to be looked at objectively, not subjectively. In Mustapha at paras. 14-16, McLachlin C.J. sets out the threshold test for establishing an entitlement to compensation:


The remoteness inquiry depends not only upon the degree of probability required to meet the reasonable foreseeability requirement, but also upon whether or not the plaintiff is considered objectively or subjectively. One of the questions that arose in this case was whether, in judging whether the personal injury was foreseeable, one looks at a person of “ordinary fortitude” or at a particular plaintiff with his or her particular vulnerabilities. This question may be acute in claims for mental injury, since there is a wide variation in how particular people respond to particular stressors. The law has consistently held — albeit within the duty of care analysis — that the question is what a person of ordinary fortitude would suffer: see White v. Chief Constable of South Yorkshire Police, [1998] 3 W.L.R. 1509 (H.L.); Devji v. Burnaby (District), (1999), 180 D.L.R. (4th) 205, 1999 BCCA 599; Vanek. As stated in White, at p. 1512: “The law expects reasonable fortitude and robustness of its citizens and will not impose liability for the exceptional frailty of certain individuals.”


As the Court of Appeal found, at para. 49, the requirement that a mental injury would occur in a person of ordinary fortitude, set out in Vanek, at paras. 59-61, is inherent in the notion of foreseeability. This is true whether one considers foreseeability at the remoteness or at the duty of care stage. As stated in Tame v. New South Wales (2002), 211 C.L.R. 317, [2002] HCA 35, per Gleeson C.J., this “is a way of expressing the idea that there are some people with such a degree of susceptibility to psychiatric injury that it is ordinarily unreasonable to require strangers to have in contemplation the possibility of harm to them, or to expect strangers to take care to avoid such harm” (para. 16). To put it another way, unusual or extreme reactions to events caused by negligence are imaginable but not reasonably foreseeable.


To say this is not to marginalize or penalize those particularly vulnerable to mental injury. It is merely to confirm that the law of tort imposes an obligation to compensate for any harm done on the basis of reasonable foresight, not as insurance. The law of negligence seeks to impose a result that is fair to both plaintiffs and defendants, and that is socially useful. In this quest, it draws the line for compensability of damage, not at perfection, but at reasonable foreseeability. Once a plaintiff establishes the foreseeability that a mental injury would occur in a person of ordinary fortitude, by contrast, the defendant must take the plaintiff as it finds him for purposes of damages. As stated in White, at p. 1512, focusing on the person of ordinary fortitude for the purposes of determining foreseeability “is not to be confused with the ‘eggshell skull’ situation, where as a result of a breach of duty the damage inflicted proves to be more serious than expected”. Rather, it is a threshold test for establishing compensability of damage at law.


[17]           In order to show that the damage suffered is not too remote to be viewed as legally caused by Mr. McCauley’s negligence, Mr. Deros must show that it was foreseeable that a person of ordinary fortitude would suffer a mental injury from witnessing the accident. He has failed to do so.


 [30]           Mr. Deros does not argue that a person of ordinary fortitude would suffer mental injury from witnessing this accident. Rather, Mr. Deros argues that the evidence from the experts establishes that he was more prone to suffer from PTSD than an ordinary person was from witnessing this accident. As stated earlier, Mr. Deros argues that the evidence supports a finding he suffered mental or psychological injury from witnessing this accident because he was more prone to injury as a result of his pre-existing condition, i.e. he was a thin skull, and was not a person of ordinary fortitude.


[31]           Having failed to establish that a person of ordinary fortitude would suffer a mental injury from witnessing this accident, it follows that Mr. Deros’ claim must fail.

Court Of Appeal Discusses Law Of Foreseeability And Duty Of Care

In Goodwin v. Goodwin et al., the Plaintiff was a passenger injured in single motor vehicle accident when the vehicle she was in hit black ice and skidded off the highway.  At trial, the trial judge ruled that one of the Defendants, the highway maintenance contractor, did not owed a duty of care to the Plaintiff. However, the British Columbia Court of Appeal allowed the Plaintiff‘s appeal, set aside the order, and remitted the action to the trial court for a determination of the following issues : the alleged breach of the duty of care, the appropriate standard of care, causation, and damages. The Court discussed the general principles of law with respect to foreseeability and duty of care.


[15]           This brings us to the fundamental principles of negligence law, as formulated by the Supreme Court of Canada in recent cases such as Cooper v. Hobart, 2001 SCC 79, [2001] 3 S.C.R. 537, Odhavji Estate v. Woodhouse, 2003 SCC 69, [2003] 3 S.C.R. 263, and Childs v. Desormeaux, 2006 SCC 18.  Both parties relied on Cooper in this appeal.  Mr. Holekamp on behalf of Ms. Goodwin emphasized the two stages of the “Anns test”, referring of course to Anns v. Merton London Borough Council [1978] A.C. 728 (H.L.).  The first is the “proximity analysis”, which involves two questions – (1) was the harm that occurred the reasonably foreseeable consequence of the defendant’s act?  and (2) are there reasons, notwithstanding the proximity between the parties established in the first part of the test, that tort liability should not be recognized?  If foreseeability and proximity are established, a “prima facie” duty of care is said to arise.  The second stage of the test involves “residual policy considerations outside the relationship of the parties that may negative the imposition of a duty of care.”  (Cooper, para. 30.)  In most cases, it will not be necessary to enter into lengthy discussion at the second stage, since the relationship will already fall within an established “category of recovery”.  In the words of the Court in Cooper:

The second step of Anns generally arises only in cases where the duty of care asserted does not fall within a recognized category of recovery.  Where it does, we may be satisfied that there are no overriding policy considerations that would negative the duty of care.  In this sense, we agree with the Privy Council in Yuen Kun Yeu that the second stage of Anns will seldom arise and that questions of liability will be determined primarily by reference to established and analogous categories of recovery.  However, where a duty of care in a novel situation is alleged, as here, we believe it necessary to consider both steps of the Anns test as discussed above. This ensures that before a duty of care is imposed in a new situation, not only are foreseeability and relational proximity present, but there are no broader considerations that would make imposition of a duty of care unwise.  [At para. 39.]

(In Odhavji, the Court referred to three requirements – reasonable foreseeability, sufficient proximity and the absence of over-riding policy reasons negating the prima facie duty, but in Childs, this was seen merely as clarifying that “proximity will not always be satisfied by reasonable foreseeability.”  (Para. 12).)