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This Blog is authored by British Columbia personal injury lawyer Erik Magraken. Erik is a partner with the British Columbia personal injury law-firm MacIsaac & Company. He restricts his practice exclusively to plaintiff-only personal injury claims with a particular emphasis on claims involving orthopaedic injuries and complex soft tissue injuries. Please visit often for the latest developments in matters concerning BC personal injury claims and ICBC claims.
Erik Magraken does not work for and is not affiliated in any way with the Insurance Corporation of British Columbia (ICBC). Please note that this blog is for information only and is not claim-specific legal advice. Erik can only provide legal advice to clients. Please click here to arrange a free consultation.
Archive for the ‘ICBC PTSD Cases’ Category
July 24th, 2014
Adding to this site’s archived posts addressing damages for Post Traumatic Stress Disorder, reasons for judgement were released this week by the BC Supreme Court, Vancouver Registry, addressing such an injury.
In this week’s case (Field v. Bains) the Plaintiff was 7 year old when her vehicle was struck by a semi trailer and dragged along the highway. She suffered from PTSD which had some lingering symptoms by the time of trial some 10 years later. ¬†In assessing non-pecuniary damages at $50,000 Madam Justice Duncan provided the following reasons:
¬†¬†¬†¬†¬†¬†¬†¬†¬†Rebecca was a seven-year-old child when she was involved in a frightening car accident with her mother. She suffered from recurrent nightmares about the accident for approximately a year and intermittent nightmares for some time after. She would not get in a car for a number of months after the accident. When she finally did she was hypervigilant, on the lookout for large trucks. The sight of a large truck near the family car caused her to go into a severe anxiety phase. She would curl up in a ball in the back of the car and obsessively talk about the truck. Rebecca also had a fear of loud noises from buses and trucks, which at its most severe caused her to run and hide or avoid taking the school bus for outings with her classmates. She never returned to ballet classes.
¬†¬†¬†¬†¬†¬†¬†¬†¬†Rebecca is now a mature and well-spoken 17-year-old. She has worked very hard to overcome the effects of the accident by seeking out counselling and successfully integrating coping techniques into her daily life.
¬†¬†¬†¬†¬†¬†¬†¬†¬†I accept the opinions of Dr.¬†Weiss and Dr.¬†Kaushansky that the plaintiff developed PTSD as a result of the accident. I accept their opinions that Rebecca‚Äôs fear of large trucks spilled over into a generalized anxiety about a number of different things. While it appears Rebecca has recovered from the psychological effects of the accident, the PTSD and anxiety are in remission rather than completely eradicated.
¬†¬†¬†¬†¬†¬†¬†¬†¬†As for the plaintiff‚Äôs prognosis, I prefer Dr.¬†Kaushanky‚Äôs opinion over that of Dr.¬†Weiss. Dr.¬†Kaushansky was of the view that Rebecca would live quite a normal life but be significantly more affected by life stressors than other people. He described it as a waxing and waning effect which would necessitate periodic visits with a counsellor. This appears to have been the case, as Rebecca sought out assistance from Ms.¬†Hildebrandt when her stress and anxiety levels over the accident as well as family matters became too much for her to deal with on her own. Ms.¬†Hildebrandt‚Äôs intervention appears to have been successful in assisting Rebecca with an abatement of her anxiety.
¬†¬†¬†¬†¬†¬†¬†¬†¬†Dr.¬†Weiss‚Äôs prognosis that the plaintiff would have marked functional impairment in her life as a result of the PTSD has not, in my view, come to fruition. Rebecca has managed to attain her driver‚Äôs licence despite the frightening after-effects of the accident. She graduated from high school, has a positive group of friends and has realistic ambitions for future career paths which she will further investigate after a year off…
¬†¬†¬†¬†¬†¬†¬†¬†¬†Taking into account the findings of fact in this case, the factors in¬†Stapley, and the comparable authorities involving children with PTSD, I award the plaintiff $50,000 in non-pecuniary damages.
January 29th, 2013
Interesting reasons for judgement were released this week by the BC Supreme Court, Vancouver Registry, addressing¬†mitigation¬†of damages in a personal injury claim seeking compensation for reduced pension benefits.
In this week’s case (Wangert v. Saur) the Defendant died when his vehicle collided with a train operated by the Plaintiff. ¬†The Plaintiff suffered from Post Traumatic Stress Disorder and missed some time from work. ¬†The Plaintiff retired in 2012 and¬†sought¬†damages for a reduced pension¬†arguing¬†that had he not been¬†psychologically¬†injured by the collision he would have worked more hours thereby having greater¬†pensionable¬†earnings.
The Defendant argued that since, at the time of the Plaintiff’s¬†retirement¬†at age 55, he was able to work full time and had no residual¬†difficulty¬†from the Accident he failed to mitigate his damages by not working past his otherwise planned retirement in order to earn a greater pension. ¬†Mr. Justice Abrioux rejected this argument providing the following reasons:
¬†¬†¬†¬†¬†¬†¬†¬†¬†In this case, I accept the plaintiff‚Äôs evidence that he had always planned to retire at the age of 55. He had spent many years working for CP Rail.
¬†¬†¬†¬†¬†¬†¬†¬†¬†The defendant did not cite any legal authority supporting his position that a plaintiff could have mitigated losses by working past his or her planned retirement age. I was also unable to find any.
¬†¬†¬†¬†¬†¬†¬†¬†¬†In my view, planning for retirement is a very important stage in a person‚Äôs life. When one has the opportunity to retire at a certain age, even though continuing to work remains available, the decision to retire is not entered into lightly. It is not for the tortfeasor to take the position that the plaintiff‚Äės failure to change his life plan due to an accident which occurred through no fault of his own, amounts to unreasonable conduct.
September 28th, 2012
Adding to this site’s database of archives caselaw addressing psychological injuries, reasons for judgement were released last week by the BC Supreme Court, Vancouver Registry, assessing damages following psychological injuries following a severe motor vehicle collision.
In last week’s case (Rizzotti v. Doe) the Plaintiff was injured in a 2005 head-on collision. ¬† The crash was significant killing the driver of the offending vehicle. ¬†Fault was admitted. ¬†The Plaintiff suffered from psychological injuries following this crash including PTSD, depression and an adjustment disorder.
The Plaintiff’s injuries were aggravated in two subsequent collisions. ¬†All three cases were heard together and damages were assessed globally. ¬†In assessing non-pecuniary damages at $110,000 Mr. Justice Tindale provided the following reasons:
]The plaintiff was clearly involved in a serious head-on collision in 2005. She sustained injuries of a physical nature and a psychological nature. The evidence is clear that the first accident caused the majority of the injuries to the plaintiff while the other two accidents exacerbated her condition.
The medical evidence is clear that the physical injuries were caused by the accidents. The medical evidence is also clear that her psychological injuries were caused by the accidents.
Dr. Anderson diagnosed the plaintiff as having ongoing depressive symptoms consistent with a diagnosis of chronic adjustment disorder with depressed mood. He also diagnosed the plaintiff with having chronic post-traumatic stress disorder in partial remission.
The psychologist, Dr. Kettner, also diagnosed her with having post-traumatic stress disorder. Both doctors Anderson and Kettner had the advantage of personally interviewing the plaintiff.
Dr. Levin agreed with the diagnosis of adjustment disorder with depressed mood however he did not feel that the plaintiff had post-traumatic stress disorder. Dr. Levin only reviewed the medical documentation and did not interview the plaintiff.
I prefer the evidence of Dr. Anderson and Dr. Kettner over that of Dr. Levin as they were able to personally interview the plaintiff.
The evidence in this case clearly indicates that the plaintiff suffered physical injuries which are long-standing and chronic in nature as well as a serious psychological injury.
The defendants have not discharged their onus that the plaintiff failed to mitigate her losses by failing to take medication. The evidence does not disclose on a balance of probabilities that she was prescribed antidepressant medication. Also, with regard to the plaintiff declining to have injections in her hip, there is no evidence that this delayed her recovery. She also gave evidence that she was afraid of injections, which I accept
The appropriate award for non-pecuniary damages is $110,000.00.
August 13th, 2012
Reasons for judgement were released last week by the BC Supreme Court, Vancouver Registry, assessing damages for chronic psychological difficulties which arose as a result of a collision.
In last week’s case (Foubert v. Song) the Plaintiff was injured in 2007 collision caused by the¬†Defendant. ¬†The Plaintiff was 60 years old at the time and 65 years old at the time of trial. ¬†The collision caused some soft tissue injuries which made a good recovery. ¬†Unfortunately¬†the collision also caused Post Traumatic Stress Disorder which continued to affect her at the time of trial and led to her early retirement. ¬†In assessing non-pecuniary damages at $90,000 Mr. Justice Punnett provided the following reasons:
 The evidence of the plaintiff‚Äôs co-workers, son and friends indicates that the plaintiff, prior to the accident, was a high energy and enthusiastic teacher and that those traits carried through into her day to day life. They have all had the opportunity to observe and deal with her both before and after the accident.
 I am satisfied that as a result of the accident the plaintiff has gone from an independent, energetic teacher with an active and varied social life to an individual who is no longer able to work as a teacher, particularly of young children, who can no longer tolerate large groups nor the over stimulation of a variety of social situations. Her intention to keep working past 65 years of age has been thwarted as a result of this motor vehicle accident.
 Given the age of the plaintiff and the fact that it is now 5 years after the accident I am satisfied that the plaintiff while having recovered from the soft tissue injuries and to a certain extent from the PTSD has not, as noted by Dr. Shane completely recovered. Her present and future level of recovery is evidenced by Dr.¬†Shane‚Äôs opinion that her status occupationally is unlikely to change and that she remains unable to return to teaching art.
 Having observed the plaintiff, her evidence of the effect of the accident and the corroborating evidence of the lay witnesses, as well as the medical evidence, I am satisfied that the plaintiff will not return to employment.
 Taking into account the evidence in this case as well as the authorities cited I am satisfied that an appropriate award for pain and suffering and a modest amount for loss of housekeeping is $90,000.
 Given my findings with respect to the pre-accident complaints there shall be no reduction for them.
August 3rd, 2012
Unreported reasons for judgement were recently released by the BC Supreme Court, Nanaimo Registry, addressing damages for “chronic, but not disabling” soft tissue injuries and post-traumatic stress arising from a motor vehicle collision.
In the recent case (Pitts v. Martin) the Plaintiff was injured in a 2008 collision. ¬†Fault was admitted by the Defendant. ¬†The extent of the Plaintiff’s damages were at issue. ¬†As is common in personal injury litigation, the Defendant produced an expert witness who provided evidence disagreeing with the Plaintiff’s physician as to the extent of the ongoing injuries and their connection to the collision. ¬†Mr. Justice Dley was not receptive to this evidence preferring the Plaintiff’s¬†treating¬†physicians. ¬†In rejecting the Defendant’s expert Mr. Justice Dley provided the following criticism:
 ¬†Dr. Dommisse provided an opinion that confirms the soft tissue injury. ¬†However, he opines that stress aggravates the physical injuries and that with proper counselling the stress would ease off; that would improve the physical injuries. ¬†Dr. Dommisse agreed that the stress affectibng Ms. Pitts resulted from the collision.
 ¬†His opinion ignores the fact that Ms. Pitts has had counselling and that she has been provided with coping techniques. ¬†Dr. Dommisse was not critical of the counselling that had been provided and deferred that aspect of the injuries to the counsellors who had previously treated Ms. Pitts.
 ¬† His opinion failed to consider that Ms. Pitts required some assistance at work. ¬†He conceded that to be a significant factor.
 ¬†Dr. Dommisse noted muscle spasm in the trapezius muscle. ¬†However, in his opinion as to whether the collision caused Ms. Pitts’ disabilities, he did not include any reference to the spasms. ¬†Instead, he referred to Ms. Pitts’ complaints as being subjective. ¬†He did not provide a satisfactory answer as to why such an objective symptom would have been left out of his analysis.
 ¬†Dr. Dommisse failed to consider the fact that Ms. Pitts suffers pain and discomfort from some of her work-related activities, particularly heavy lifting. ¬†Those symptoms are brought on without any stress. ¬†That significant omission from his report destroys any reliability that might be attached to his opinion that “it is unlikely that Ms. Pitts’ current disabilities were caused by the accident”.
 ¬†Dr. Dommise commented that counselling from Ms. Pitts’ stress and anxiety will likely improve her symptoms. ¬†His evidence did not provide any basis for that opinion to be reliable. ¬†It ignores the reality that counselling has already been provided and there is no suggestion that the treatment was in any way lacking. ¬†I am not satisfied that any further counselling is likely to resolve or further improve Ms. Pitts’ present condition.
In assessing non-pecuniary damages at $60,000 Mr. Justice Dley provided the following reasons:
 ¬†It is now four years post-accident. ¬†Ms. Pitts has been diligent in pursuing rehabilitation measures. ¬†Ms. Pitts still has some lingering injuries – they are chronic, but not disabling. ¬†Ms. Pitts can carry on with her everyday life and work, but she has limitations because she must be careful so as not to aggravate her injuries. ¬†She continues to suffer from the post-traumatic stress of the collision. ¬†She has learned coping techniques, but that has not eliminated the disorder.
 ¬†Taking into account the injuries sustained and the impact they have had and will continue to have, I assess general damages at $60,000.
As noted this judgement is not reported¬†therefore¬†not publicly available. ¬†As always, I‚Äôm happy to provide¬†a copy to anyone who contacts me and requests one.
July 16th, 2012
In a compelling illustration of the potential civil consequences following criminal behaviour, reasons for judgement were released this week by the BC Supreme Court, Vancouver Registry, assessing damages for a brain injury following an assault at over $561,000.
In the recent case (Weber v. DeBrouwer) the Plaintiff worked as a supervisor of the Defendant at the Village of Harrison Hot Springs. ¬† The Plaintiff “suspended the defendant several times” and over the course of their overlapping employment “relations between the two worsened“. ¬† In the summer of 2007 the defendant approached the Plaintiff as the Plaintiff was out for a walk and “brutally assaulted” him.
The assault led to various physical injuries including a mild traumatic brain injury and further led to¬†ongoing¬†psychological difficulties. ¬†Global damages of over $561,000 were assessed with non-pecuniary damages assessed at $150,000. ¬†In arriving at this figure Mr. Justice Greyell provided the following reasons:
 In this case, Mr. Weber was 49 years old at the time he was assaulted. The assault caused him significant injury and pain and suffering. He suffered facial injuries, including several fractures, dental injuries, bruising, rib and chest injuries, knee and hand injuries, soft tissue injuries to his back and neck, and a mild traumatic brain injury with ongoing cognitive and speech difficulties which took some time to resolve. Mr. Weber remains affected by depression, anxiety, and post traumatic stress disorder. He avoids confrontational situations…
 In the present case, Mr. Weber is now 54 years old. A number of his injuries, including his headaches, bruising and soft tissue injuries cleared up after several months. For a considerable time after the assault he was bothered with nightmares and had difficulty sleeping. He is left with a number of problems. He has difficulty with the alignment of his jaw; he still is clumsy and, while greatly improved, he has difficulty finding and pronouncing some words. Mr. Weber remains anxious and fearful of the defendant and avoids going places where the defendant might be. He avoids situations with guests at the motel where any type of conflict could arise, deferring to his wife to handle such matters. Dr. Smith says he will remain permanently impaired by symptoms of anxiety.
 Mr. Weber‚Äôs injuries and the residual effects of those injuries are significant, however, in my view, each of the cases cited by counsel for Mr. Weber involve circumstances where the injuries and residual effects to the plaintiffs were more significant. After a consideration of the factors outlined above in¬†Stapley, I conclude $150,000 is an appropriate and fair amount to award for non-pecuniary damages.
June 22nd, 2012
Reasons for judgement were released last week by the BC Supreme Court, Vernon Registry, assessing damages for physical and psychological injuries resulting from a motor vehicle collision.
In last week’s case (Verge v. Chan) the Plaintiff was injured in a 2006 head-on collision. ¬†She was 34 at the time and lived a ‘farming lifestyle’ which required significant¬†strenuous¬†labour. ¬†The Plaintiff¬†suffered¬†a fractured ankle and¬†psychological¬†injuries both of which lingered to the¬†time¬†of trial and impeded with her physical lifestyle. ¬†In assessing non-pecuniary damages at $125,000 Mr. Justice Greyell provided the following reasons:
Ms.¬†Verge suffered soft tissue injuries to her neck and back, a fractured right talus, bruising to and pain in her chest, and pain in her left shoulder, both knees, and hip.
 She continues to suffer from her ankle injury, sleep disturbance, headaches, stress, anxiety, including post-traumatic stress disorder (‚ÄúPTSD‚ÄĚ), depression and chronic pain…
 The injury she sustained in the accident of December 6, 2006, has had a significant effect on her physical and mental health.¬† She is left in virtually constant pain with an unstable ankle such that she can no longer perform the tasks she used to perform on the farm and about the house or enjoy the hobbies and recreational pursuits she used to enjoy pre-accident.¬† She has developed mental health issues, including PTSD and depression, which will require a significant course of treatment before she can return to work.¬† As a result of her injuries, the work opportunities which will be available to her are less than pre-accident.¬† She has lost the farming lifestyle she enjoyed and her family, marital, and social relationships have been impaired…
78] After considering the evidence, the factors enumerated by the Court of Appeal in Stapley, and the authorities cited by counsel, I award non-pecuniary damages in the amount of $125,000.
October 13th, 2011
Reasons for judgement were released last month by the BC Supreme Court, Chilliwack Registry, addressing damages from a 2006 motor vehicle collision.
In last month’s case (Felix v. Hearne) the Plaintiff was driving her vehicle when her boyfriend, who was riding as a passenger, “grabbed the steering wheel causing the vehicle to leave the highway and overturn.” ¬†He was killed in the collision and the Plaintiff suffered numerous physical injuries.
The passenger was found at fault for the crash. ¬† The Plaintiff, who was a verbatim reporter, suffered injuries which seriously compromised her¬†abilities¬†both vocationally and recreationally. ¬†Global damages of just over $800,000 were assessed including non-pecuniary damages of $200,000. ¬†In arriving at this figure Mr. Justice Grist provided the following reasons:
 In this case, the physical injuries continuing to affect the plaintiff include: the injury to her left shoulder, left wrist and left ankle; as well as persistent pain in her neck and back. The pain in her neck and back limits her ability to sit for any extended period of time and is associated with the onset of headaches.
 The residual effect of the collision, however, is markedly more significant because of the PTSD and depression that she suffers. Combined, there is significant loss in respect of her vocation, family life and social activities…
 Ms. Felix‚Äôs life has markedly changed following the collision. She is now reliant on her daughters to assist in keeping her home. She receives psychological therapy, is treated with anti-depressant medication and has been prescribed Ativan and Valium to allow her to sleep. She has not been able to work and has been forced to live off of disability benefits and funds realized by re-mortgaging her home. The evidence from her daughter and her two long-time friends who gave evidence on her behalf was that her level of activity and previously bright outlook on life had markedly changed. Her daughter was concerned that, at times, she seemed suicidal. She said that she noted some improvement after she attended the pain clinic in the spring of 2010 and that she seemed a little happier and better able to manage her pain, but that she had regressed since and lacked focus and initiative. She said she often appeared to be in pain, had become short tempered and withdrew from contact with family and friends.
 Many of the same comments were made by her friends who commented on the difficulty in getting her to attend social functions, her lack of participation and stamina, and her fragile emotional state.
 For a time, she formed a relationship with an individual she met through a common friend, but they have since separated which she attributed to her depression and inability to join in social activities he wanted to participate in. She relates that she began to abuse alcohol to the point she feared she was alcoholic…
 It is now six years subsequent to the collision and, although there have been some areas of recovery, there would appear to be, at best, only a modest hope for further improvement…
 On balance, I think an appropriate assessment in light of this authority in this case to be $200,000.00 in non-pecuniary damages. The combined effects of residual physical injuries, specifically the neck and back pain and associated headaches, loss of function in her left wrist, and injury to her left shoulder and ankle, along with the pervasive emotional disorder resulting from the effects of her injuries and the trauma of the collision, have been devastating to Ms. Felix‚Äôs personal and vocational life. She has lost much of her ability to be self-reliant and to participate in many of the activities that have been the foundation of her social life. The injuries are now assessed as chronic and I think she will continue to struggle with the depression and emotional upset that has marked the six years subsequent to her injuries.
It is worth noting that none of the Plaintiff’s evidence was tested through cross-examination as the Defendant’s estate did not file an appearance and ICBC, for reasons that were not clear in the judgement, “declined to participate” in the defence of the claim. ¬†Despite this, the case still has value as a precedent for non-pecuniary¬†damage assessments for chronic pain following a motor vehicle collision.
July 13th, 2011
Reasons for judgement were released last month by the BC Supreme Court, Duncan Registry, assessing damages for PTSD and chronic headaches following a motor vehicle collision.
In last week’s case the Plaintiff was involved in a 2005 collision. ¬†Fault for the crash was admitted focusing the trial on the value of the claim. ¬† The Plaintiff suffered from some pre-existing difficulties including depression and anxiety. ¬†The collision caused new injuries including pain, headaches and PTSD. ¬†Mr. Justice Rogers assessed non-pecuniary damages of $90,000 and then made a modest reduction to take the pre-existing condition into account. ¬†In assessing damages the Court provided the following reasons:
 Turning to the plaintiff‚Äôs injuries, the overall weight of the evidence paints a clear picture: before the traffic accident the plaintiff had some depression and she was sometimes anxious. The breakdown of her marriage and the emotional upheaval and fiscal uncertainty that flowed from that breakdown fuelled her depression and anxiety. Both conditions were sufficiently active as to prompt her to obtain medical attention. The plaintiff‚Äôs depression and anxiety were, therefore, present and active maladies before the accident. The plaintiff did not, however, suffer from post-traumatic stress disorder or from pain in her neck, jaw and face, and the plaintiff did not suffer from migraine or neuralgic headaches. The plaintiff was not fatigued and her ability to function in everyday life was not limited in any significant way. After the accident the plaintiff does now, and will in the future continue to, suffer from myofascial pain in her face and jaw. She does, and will continue to, suffer from periodic migraine and neuralgic headaches. Her neck will be sore after physical activity. She will be fatigued and socially withdrawn. These changes in her life have deepened her depression and made her more susceptible to anxiety…
 That said, the plaintiff‚Äôs pain, headaches and post-traumatic stress disorder were not features of her life before the accident and there was no measurable risk that, absent the accident, they would have become features of her life. Likewise, the plaintiff‚Äôs difficulties with memory and concentration were not a problem before the accident. Although the plaintiff argued that these latter problems stemmed from a minor traumatic brain injury, I find that that they are, in fact, a product of the effect on her mentation of pain, depression and anxiety.
 On an overall assessment of the whole body of the evidence at trial, I am satisfied that the plaintiff‚Äôs claim for non-pecuniary damages should be reduced by a relatively modest amount in order to accurately reflect her pre-existing emotional condition. I fix that reduction at 10 percent of the total.
 I find that were it not for her pre-existing condition, I would have fixed the plaintiff‚Äôs non-pecuniary damages at $90,000. I find that after subtracting the pre-existing condition, the plaintiff is entitled to judgment for general damages of $81,000.
This judgement is also worth reviewing for the Court’s discussion of principle of adverse inference. ¬†The Plaintiff did not call her family physician in support of her claim. ¬†ICBC argued that the Court should draw an adverse inference as a result. ¬†Mr. Justice Rogers refused to do so and in dismissing ICBC’s argument the Court provided the following comments:
 I also accept the opinions of the plaintiff‚Äôs medical treaters. I am not worried about the lack of evidence from the plaintiff‚Äôs family physician. It was he who referred the plaintiff to specialists, and it was those specialists who diagnosed and treated the plaintiff‚Äôs accident-caused symptoms. The family physician‚Äôs evidence would, in my view, likely have consisted of little more than confirmation that the specialists were engaged and progress was made under their care. As such, I am confident that the family physician‚Äôs evidence would have added little new into the mix.
February 25th, 2011
As recently discussed, in¬†appropriate¬†circumstances¬†witnesses to the consequences of a BC collision can sue for damages for “nervous shock“. ¬†There are some limits on these claims and one of these relates to whether the shocking event is “sudden and unexpected“. ¬†If not, a claim for damages for nervous shock will fail. ¬†This topic was addressed in reasons for judgement released today by the BC Court of Appeal.
In today’s case (Toukaev v. ICBC) the Plaintiff’s spouse was seriously injured in a motor vehicle collision. ¬†He was notified of the crash and saw his wife shortly afterwards in the hospital. ¬†He claimed he suffered damages after seeing his wife “in a very bad state at hospital” and sued for compensation. ¬†His claim was dismissed and he appealed. ¬†The Appeal was dismissed. ¬†In doing so the BC Court of Appeal provided the following reasons addressing the need for nervous shock claims to develop as a result of ‘sudden and unexpected‘ events:
¬†¬†¬†¬†¬†¬†¬†¬†¬†Chief Justice McEachern went on to state that while the Court was in part bound by¬†Rhodes, he did not consider¬†Rhodes¬†as standing for the proposition that for a claim for nervous shock to be found, psychological injury must have occurred at the scene of the accident. ¬†He stated that in certain cases it could be extended to the events at the hospital immediately after the accident. ¬†At paras. 75 – 77, the Chief Justice concluded:
¬†¬†¬†¬†¬† The law in this province, as formulated by¬†Rhodes, requires that the plaintiffs, in order to succeed, must experience something more than the surprise and other emotional responses that naturally follow from learning of the death of a friend or relative. Instead, there must be something more that separates actionable responses from the understandable grief, sorrow and loss that ordinarily follow the receipt of such information. In¬†Rhodes, Taylor and Wood JJ.A. described the requisite experience as alarming and startling (and therefore sudden and unexpected), horrifying, shocking and frightening, and Southin J.A. referred to a ‚Äúfright, terror or horror‚ÄĚ.
¬†¬†¬†¬†¬† The nature of the experience by which an injury is alleged to have been suffered is one of the ‚Äúcontrolling mechanisms‚ÄĚ that serve to limit the reach of liability for nervous shock in this province. It seems to me that the principle shock suffered by the plaintiffs was in learning of Yasmin‚Äôs death; after that, grief, sorrow and regret would follow immediately, and would continue for an unlimited period. The experience of viewing the body, however, cannot be equated to the shock and horror that would be experienced, for example, at the scene of an accident witnessed by the plaintiffs because the features of surprise, shock, horror and even fear are absent in a hospital setting. As already mentioned, it might have been different if Yasmin‚Äôs body had been horribly mutilated or if she had died in the presence of her family. That was the case in¬†Cox v. Fleming¬†(1993), 13 C.C.L.T. (2d) 305 (B.C.S.C.) where the plaintiff succeeded. That would be a different case and one that I need not attempt to decide.
¬†¬†¬†¬†¬† While I consider myself free to agree with many eminent judges who have extended the immediate aftermath of a casualty to the hospital in circumstances such as these, I am constrained by authorities binding upon me to decide that the experience the plaintiffs endured, grievous as it must have been for them, was not one that falls within the requirements of the law relating to the circumstances in which persons who are not physically injured are entitled to damages for nervous shock.
¬†¬†¬†¬†¬†¬†¬†¬†¬†Here, Mr. Toukaev learned of Ms. Toukaeva‚Äôs injuries before he saw her, and while her condition must have been upsetting to him when he saw her, it could not be said to have been unexpected. ¬†As was the case for Yasmin Devji‚Äôs family, the Chambers Judge here concluded that a claim by Mr. Toukaev would not fall within the requirements of the law relating to the circumstances in which persons who are not physically injured are entitled to damages for nervous shock, and I conclude that that aspect of his appeal lacks the degree of merit necessary to justify a finding of indigent status.