Dead Flies and Bad News

Nervous shock, or the cause of action otherwise known as “psychiatric damage,” includes all forms of mental illness, neurosis and personality change. In Canada, a plaintiff can recover for the negligent infliction of psychiatric damage where the psychiatric damage suffered was a foreseeable consequence of the negligent conduct; and the psychiatric damage was so serious that it resulted in a recognizable psychiatric illness. There is no requirement in nervous shock for direct contact.

The Ontario Superior Court of Justice in Mustapha v. Culligan of Canada Ltd. recently awarded a hairdresser $340,000 in psychiatric damages for seeing a dead fly in an unopened bottle of Culligan water. The Ontario Court of Appeal overturned this decision; the case is currently under appeal to the Supreme Court of Canada.

The courts in B. C. are leading a new development in the law as historically courts have maintained someone does not suffer psychiatric illnessonbeingtoldaboutanaccident. InLewv. Mount Saint Joseph Hospital Society the British Columbia Supreme Court declined to dismiss the case on the basis that the claim disclosed no cause of action leaving open the possibility to claim damages for nervous shock on the basis of negligent communication of bad news. In 2003 the British Columbia Supreme Court awarded $10,000 to a woman who was told she had pancreatic cancer.

The Basics of nervous shock

The kind of psychiatric damage for which recovery may be had involves more than general upset. Damages are not intended to be awarded for grief, sorrow, worry, financial strain, stress or an inability to adjust to a new life. Rather, damages are intended only where a recognizable psychiatric injury was caused by a defendant’s breach of duty of care.

Damages for psychological injury may be awarded where:

• There is reasonable foreseeability between the defendant’s conduct and the plaintiff’s psychological injury;

• There is a sufficiently close relationship between the plaintiff and defendant to establish a duty of care;

• There are no public policy concerns to negate that duty of care; and • The psychological injury alleged was caused by the exposure of the plaintiff to the accident.

While public policy concerns and the exposure issue are factors to be taken into consideration, the issues of foreseeability and proximity are the two dominant and interlocked issues in any claim for psychiatric damages.

Foreseeability

Courts apply the following test to determine whether psychiatric damage is reasonably foreseeable: is a person of normal fortitude or sensibility likely to suffer some type of psychiatric harm as a consequence of the defendant’s careless conduct?For instance, it is not reasonably foreseeable that:

• A father would suffer from nervous shock over the wellbeing of his daughter after learning that she had ingested a small amount of a contaminated substance from a juice box, which occasioned no lasting injury.

• A mother would suffer from nervous shock after discovering the vehicle containing her children had been involved in a motor vehicle accident where no injuries to the children passengers resulted and only minor damage was visited on the vehicle.

In each of the above decisions, the Courts have determined that the individual plaintiff’s reaction in the form of alleged nervous shock was unique, strange, hypersensitive and/or abnormal under the circumstances. All three claims were rejected. It is, however, reasonably foreseeable that:

• An injured woman in a motor vehicle accident would suffer from nervous shock at witnessing a motorcyclist being run over and killed by a second vehicle (Bechard). She was awarded $7,500 for her “post-traumatic stress reaction” which included phobia in driving cars, sleeplessness and constantly reliving the scene of the accident.

• A man who assisted three passengers at the scene of a motor vehicle accident when all three passengers later died in hospital would suffer from minor post-traumatic stress disorder (Arnold). He was awarded $10,000 in non-pecuniary damages for having suffered a panic attack 11 months after the accident, which was considered to be a relatively minor symptom. He additionally suffered from anxiety while driving, flashbacks to the accident and difficulty sleeping.

Proximity

In addition to the requirement of reasonable foreseeability, the test for nervous shock requires “a sufficiently close relationship.” This sufficiently close relationship includes three main proximities:

• Geographical proximity: the location of the plaintiff in relation to the scene of the accident.

• Emotional proximity: the relationship between the plaintiff and the victim.

• Temporal proximity: the time after which the psychiatric illness develops.

For instance, the decision of the British Columbia Court of Appeal in Rhodes Estate v. C. N. R. is one of the leading decisions involving issues of geographical proximity. The plaintiff who lived in B. C learned of her son’s death in a train accident in Hinton, Alta over the radio. The mother travelled to Alberta and was refused access to the crash site, she was then directed to the wrong funeral service and later received her son’s ashes in the post. Notwithstanding the obvious emotional proximity that would exist between mother and son, the court held there was an insufficient geographical proximity to substantiate this claim for nervous shock.

On the other hand, in Bechard, although the plaintiff had no direct emotional proximity to the stranger on the motorcycle, she was more than a “mere bystander” because of her involvement in the first motor vehicle accident and her attempt to warn the oncoming vehicle of the fallen motorcycle by waving her arms. She had to jump out of the way when it became obvious that the second motorist had not seen her.

Temporal proximity involves the relationship between the time of the event and the onset of the psychiatric illness. Ideally, the psychiatric illness would develop shortly after the accident. In Bechard, the plaintiff developed her psychiatric illness immediately after the motorcyclist was ran over by the second vehicle. However, in Arnold it took 11 months for the psychiatric illness to develop and for the first panic attack to occur. Notwithstanding the significant time delay, the court determined that the psychiatric injury was compensable although minor.

Courts continue to be receptive to this cause of action, and the law pertaining to nervous shock continues to develop. The addition of negligent communication of bad news to the roster of compensable psychiatric injuries, especially in the context of hospital and nurses’ insurance, is a trend that should be watched with interest. As for the dead flies, we will have to wait for the final decision from the Supreme Court of Canada.

Rene Miller was an associate with Carfra & Lawton in Victoria, B. C. Her practice involved insurance defence litigation with an interest in human rights and admiralty law. Carfra & Lawton is a member of the Risk Management Counsel of Canada.

2 See Linden, Canadian Tort Law, 11th ed., (1999) at pp. 295-296. 3 See also Rhodes Estate v. C. N. R.. and Vanek v. Great Atlantic & Pacific Co. of Canada, (1999) 172 O. A. C. 286 (Ont. C. A.), leave to appeal refused [1991] S. C. C. A. No. 1. 4 Mustapha v. Culligan of Canada Ltd. [2006] O. J. No. 4964 reversing [2005] O. J. No. 1469, appeal to the Supreme Court of Canada allowed [2007] S. C. C. A. No. 109. 5 See Rhodes Estate and Vanek at note 3. 6 Lew v. Mount Saint Joseph Hospital Society, [1997] B. C. J. No. 1353 (BCSC), leave to appeal dismissed [1997] B. C. J. No. 2461 (BC CA). 7 Drage v. Page, [2003] B. C. J. No. 64 and supplementary decision regarding costs [2004] No. 17. 8 See Duwyn v. Kaprielian (1978), 22 O. R. (2d) 736 (C. A.) and Hinz v. Berry, [1970] 2 Q. B. 40. 9 Arnold v. Cartwright 2007 BCSC 1602 and Devji v. Burnaby (District), 1999 BCCA 599. 10 Mustapha v. Culligan of Canada Ltd. [2006] O. J. No. 4964. 11 Vanek v. Great Atlantic & Pacific Co. of Canada, [1999] O. J. No. 4599 (Ont. C. A). 12 Duwyn v. Kaprielian [1978] O. J. No. 3663 (Ont. C. A.). 13 Bechard v. Haliburton Estate, [1991] O. J. No. 1969. 14 Arnold v. Cartwright Estate, 2007 BCSC 1602. 15 Rhodes Estate v. C. N. R.

TIPS FOR ADJUSTING CLAIMS FOR NERVOUS SHOCK

Plaintiff’s reaction -obtain witness statements from other persons at the scene with respect to the plaintiff’s reaction to the event. The temporal proximity that forms part of an action for psychiatric damages requires a “sufficiently close relationship” between the time of the event and the onset of the psychiatric illness. The greater the passage of time between the event and the development of the alleged psychiatric injury, the less likely the plaintiff will be able to substantiate their claim for psychiatric damage.

Witness Statements -obtain witness statements from other persons at the scene with respect to their own reaction to the event. If it can be established that other witnesses did not find the event to be “shocking” or “horrifying” those statements may help to mitigate the plaintiff’s claim for nervous shock.

Clinical Records -In addition to medical records, look for a previous history of psychiatric trouble. A previous clinical history may help mitigate a claim for nervous shock and will help evaluate the credibility of the plaintiff. On the other hand, you are required to take your victim as you find her/him and the clinical records may be of assistance in assessing the insurer’s exposure.

Know your plaintiff -research the plaintiff’s background to discover whether they have had any formal rescue and/or medical training. If the plaintiff has received formal training it is expected that she/he will be in a better position psychologically to withstand a shocking event.