Plaintiff’s Claim For Nervous Shock Dismissed After Witnessing Friend Struck By Vehicle

In Deros v McCauley, the Plaintiff witnessed his friend being struck by another vehicle, however his friend was not seriously injured. The Plaintiff’s claim for nervous shock was dismissed.


[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…


[18]           In fact, Mr. Deros takes the position that he is a “classic thin skull” and that because of his pre-existing problems, both physical and psychological, he was more susceptible to suffering a mental injury.


[19]           Mr. Deros asserts the evidence supports a finding that he is particularly vulnerable to psychological injury because of his pre-existing problems. He says that prior to the accident he suffered from chronic pain in his back and shoulder, edema and sleep apnea. As well, he was obese and taking heavy dosages of pain killers. Mr. Deros says he suffered from depression and panic attacks prior to the accident. However, he says he was not suffering from depression at the time of the accident, and the frequency of his panic attacks had diminished.


[20]           Mr. Deros agrees he was suffering from a number of stressors at the time of the accident. He says several stressors made him more prone to suffer from PTSD, including the deaths of his daughter and father; his weight gain after his daughter’s death; the fact he was disabled from many forms of employment due to his weight gain; and his unemployment. He says the evidence from Dr. Ancill, Dr. Passey and Dr. Riar supports this finding.


[21]           Mr. Deros argues, in effect, that the thin skull rule should be taken into consideration in determining whether his damages were foreseeable. He says in this case liability has already been determined and, therefore, the thin skull rule applies. However, even if the plaintiff proves the defendant owed him a duty and breached the duty, the plaintiff must establish it was reasonably foreseeable that a person of ordinary fortitude would suffer a serious injury as a result of witnessing the accident: Mustapha at para. 18. It is only after establishing that it is reasonably foreseeable that a mental injury would occur in a person of ordinary fortitude that the circumstances of the particular plaintiff are considered.


[23]         The cases, to which I was referred, where damages for nervous shock have been awarded to witnesses of accidents who were not physically involved in the accidents, involve accidents or events which are more shocking than the accident in this case. All the cases involved accidents in which someone has died or been seriously injured


[25]         In this case, Mr. Deros witnessed a collision that involved no serious injuries. Even if I accept Mr. Deros’ evidence at trial that he initially thought a rod had skewered Mr. Lance, he knew within minutes this did not occur and Mr. Lance had not suffered serious injury….


[29]         There is no evidence that a person of ordinary fortitude would have suffered nervous shock injury or mental illness as a result of witnessing this accident. The experts testified about Mr. Deros’ particular reaction to the accident, but not that a person of ordinary fortitude would have suffered mental injury.


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