ICBC Law

Reasons for judgement were released last week by the BC Supreme Court, New Westminster Registry, finding that a claim for damages for a break-up of a relationship following a collision is too remote for liability.

In last week’s case (Shinkaruk v. Crouch) the Plaintiff was involved in a 2006 collision.  He was found 20% at fault for the crash with the Defendant shouldering 80% of the blame.  The Plaintiff had “a significant history of low back pain” and this pre-existing injury was aggravated by the collision.  He was awarded damages for this aggravation.

During the period of aggravation the Plaintiff experienced difficulties with his partner and eventually she asked the Plaintiff to leave.  The Court found that this event was too remote to attract damages and in doing so Madam Justice Saunders provided the following reasons:

[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.

The Supreme Court of Canada recently addressed the legal framework for striking pleadings pursuant to Rule 9-5.  In short, the Court repeated the longstanding test that pleadings will only be dismissed under the BC Supreme Court Rules if they have ‘no reasonable prospect of success‘ and that the parties cannot tender evidence in support of these applications.

In the recent case (R v. Imperial Tobacco Ltd.) the Court was faced with a lawsuit by British Columbia seeking to recover health care costs for tobacco related illnesses.  In the course of defending the lawsuit the tobacco companies issued Third Party Pleadings against the Government of Canada pleading that if they are held liable to the Government of BC the Federal Government should indemnify the Tobacco Companies for damages payable.  The Government of Canada brought an application to dismiss the Third Party Pleadings.

The Supreme Court of Canada granted the application and dismissed the Third Party Pleadings.  In doing so the Court provided the following legal framework for Pleading strike applications:

This Court has reiterated the test on many occasions.  A claim will only be struck if it is plain and obvious, assuming the facts pleaded to be true, that the pleading discloses no reasonable cause of action… Another way of putting the test is that the claim has no reasonable prospect of success.  Where a reasonable prospect of success exists, the matter should be allowed to proceed to trial…

[19] The power to strike out claims that have no reasonable prospect of success is a valuable housekeeping measure essential to effective and fair litigation.  It unclutters the proceedings, weeding out the hopeless claims and ensuring that those that have some chance of success go on to trial.

[20] This promotes two goods — efficiency in the conduct of the litigation and correct results.  Striking out claims that have no reasonable prospect of success promotes litigation efficiency, reducing time and cost.  The litigants can focus on serious claims, without devoting days and sometimes weeks of evidence and argument to claims that are in any event hopeless.  The same applies to judges and juries, whose attention is focused where it should be — on claims that have a reasonable chance of success.  The efficiency gained by weeding out unmeritorious claims in turn contributes to better justice.  The more the evidence and arguments are trained on the real issues, the more likely it is that the trial process will successfully come to grips with the parties’ respective positions on those issues and the merits of the case.

[21] Valuable as it is, the motion to strike is a tool that must be used with care.  The law is not static and unchanging.  Actions that yesterday were deemed hopeless may tomorrow succeed.  Before Donoghue v. Stevenson, [1932] A.C. 562 (H.L.) introduced a general duty of care to one’s neighbour premised on foreseeability, few would have predicted that, absent a contractual relationship, a bottling company could be held liable for physical injury and emotional trauma resulting from a snail in a bottle of ginger beer.  Before Hedley Byrne & Co. v. Heller & Partners Ltd., [1963] 2 All E.R. 575 (H.L.), a tort action for negligent misstatement would have been regarded as incapable of success.  The history of our law reveals that often new developments in the law first surface on motions to strike or similar preliminary motions, like the one at issue in Donoghue v. Stevenson. Therefore, on a motion to strike, it is not determinative that the law has not yet recognized the particular claim.   The court must rather ask whether, assuming the facts pleaded are true, there is a reasonable prospect that the claim will succeed.  The approach must be generous and err on the side of permitting a novel but arguable claim to proceed to trial.

[22] A motion to strike for failure to disclose a reasonable cause of action proceeds on the basis that the facts pleaded are true, unless they are manifestly incapable of being proven: Operation Dismantle Inc. v. The Queen, [1985] 1 S.C.R. 441, at p. 455.  No evidence is admissible on such a motion: r. 19(27) of the Supreme Court Rules (now r. 9-5(2) of the Supreme Court Civil Rules).  It is incumbent on the claimant to clearly plead the facts upon which it relies in making its claim.  A claimant is not entitled to rely on the possibility that new facts may turn up as the case progresses.  The claimant may not be in a position to prove the facts pleaded at the time of the motion.  It may only hope to be able to prove them.  But plead them it must.  The facts pleaded are the firm basis upon which the possibility of success of the claim must be evaluated.  If they are not pleaded, the exercise cannot be properly conducted…

It is not about evidence, but the pleadings.  The facts pleaded are taken as true.  Whether the evidence substantiates the pleaded facts, now or at some future date, is irrelevant to the motion to strike.  The judge on the motion to strike cannot consider what evidence adduced in the future might or might not show.  To require the judge to do so would be to gut the motion to strike of its logic and ultimately render it useless.

[24] This is not unfair to the claimant.  The presumption that the facts pleaded are true operates in the claimant’s favour.  The claimant chooses what facts to plead, with a view to the cause of action it is asserting.  If new developments raise new possibilities — as they sometimes do — the remedy is to amend the pleadings to plead new facts at that time.

[25] Related to the issue of whether the motion should be refused because of the possibility of unknown evidence appearing at a future date is the issue of speculation.  The judge on a motion to strike asks if the claim has any reasonable prospect of success.  In the world of abstract speculation, there is a mathematical chance that any number of things might happen.  That is not what the test on a motion to strike seeks to determine.  Rather, it operates on the assumption that the claim will proceed through the court system in the usual way — in an adversarial system where judges are under a duty to apply the law as set out in (and as it may develop from) statutes and precedent.  The question is whether, considered in the context of the law and the litigation process, the claim has no reasonable chance of succeeding.

This decision is also worth reviewing for the Court’s discussion of the concepts of proximity, forseeability, and private law duties of care which I will address in a separate post.

Important reasons for judgement were released last month by the BC Court of Appeal making it clear that insurance brokers can be sued for professional negligence if they fail to properly advise clients of the limits of their insurance policies.

In last month’s case (Beck v. Johnston, Maier Insurance Agencies Ltd.) the Plaintiff’s home was intentionally burned down by her husband in a tragic murder/suicide.  The home was insured however the policy had an exclusion for losses that occurred as a result of “intentional acts by named insureds“.

The Plaintiff’s estate sued the insurance broker claiming they were negligent in failing to discuss this exclusion when the policy was renewed (which last occurred after the Plaintiff split up with her husband).  The claim succeeded at trial.  The insurance brokers appealed arguing the claim should be dismissed as this damage was not forseeable.  The BC Court of Appeal dismissed the appeal and in doing so provided the following reasons which should ring as a caution to insurance brokers when selling policies of insurance:

[17] Members of the public purchase insurance to protect themselves and their property from unforeseen events. Policies of homeowner’s insurance, rented dwelling insurance and tenant’s insurance are invariably written by insurers, who describe the coverage that they are prepared to provide and the exceptions to that coverage in the policies they write. They then quote the premium that they require to provide the coverage….

[21] Both Mr. Sache, an insurance broker retained by the appellant and Mr. Pat Anderson, a licensed insurance broker retained by the respondent agreed that it is standard practice for brokers to explain the intentional act exclusion in a homeowner’s policy to a customer when insurance is first placed for that customer….

[25] While Ms. Beck may not have had any knowledge or belief that Mr. Beck intended to harm the home at the time her insurance coverage was renewed in July of 2007, such knowledge was not the issue. The issue was whether her insurance broker ought to have discussed her insurance needs with her when it was clear that she and her husband had separated….

[27] The summary trial judge was bound to accept, as she did, the uncontradicted evidence before her of the standard of care to be expected on an insurance broker. In areas where the courts lack expertise with respect to a particular field of endeavour, it is necessary to rely on expert evidence of standard practice of those in that field of endeavour in order to determine whether the requisite duty of care has been met. In ter Neuzen v. Korn, [1995] 3 S.C.R. 674 at para. 39 Sopinka J. referred with approval to the following statement by Professor Fleming in The Law of Torts(7th ed. 1987) at p. 109:

Conformity with general practice, on the other hand, usually dispels a charge of negligence. It tends to show what others in the same “business” considered sufficient, that the defendant could not have learnt how to avoid the accident by the example of others, that most probably no other practical precautions could have been taken, and that the impact of an adverse judgment (especially in cases involving industry or a profession) will be industry-wide and thus assume the function of a “test case”. Finally, it underlines the need for caution against passing too cavalierly upon the conduct and decision of experts.

[28] It was unnecessary for the respondent to prove that Ms. Beck foresaw that Mr. Beck Sr. represented a “real” or an actual risk of intentionally damaging the home. On the evidence, Ms. Beck’s change in circumstances presented a foreseeable new risk to be considered vis a vis her insurance needs…

[33] The summary trial judge was clearly of the view that, when a renewal of insurance coverage is required, the broker similarly has a duty to provide relevant information about the types of coverage available to the client, to meet any change in needs that the client may have as a result of any changes in his or her circumstances of which the broker is or should be aware. There was ample evidence upon which the trial judge could make that finding, and no basis upon which this Court can interfere with it.

Reasons for judgement were released this week by the BC Court of Appeal succinctly highlighting some of the limits of the forseeability defence to personal injury lawsuits.

In today’s case (Hussack v. Chilliwack School District No. 33) the Plaintiff sustained a concussion when struck in the head with a field hockey stick as he approached another player.  He was a student in grade 7 at the time and the game was being supervised by a PE teacher.  Madam Justice Boyd of the BC Supreme Court held that the School District was responsible for this event because the teacher permitted the Plaintiff to play before he “learned any of the basic skills or even how to play the game” and that doing so breached the standard of care that the school should have exercised.

The Plaintiff developed serious psychological issues following his concussion.   At trial the Plaintiff was awarded  just over $1.3 million for his injuries and loss.

The School District appealed for many reasons but were largely unsuccessful.  The BC Court of Appeal made some modest reductions to the wage loss awards but left the trial judgement largely intact.  One of the Defendant’s arguments was that the Plaintiff’s severe psychiatric dysfunction was not a forseeable consequence of the event.  The BC Court of Appeal rejected this argument and in doing so provided the following useful reminder of the limits of the forseeability defence:

[71] It is not necessary for the plaintiff to show that the precise injury or the full extent of the injury was reasonably foreseeable.  What he must show is that the type or kind of injury was reasonably foreseeable:  Hughes v. Lord Advocate, [1963] UKHL 1; Jolley v. Sutton London Borough Council, [2000] UKHL 31; Ontario (Minister of Highways) v. Côté, [1976] 1 S.C.R. 595….

[74] The principle of reasonable foreseeability in relation to psychiatric injury is subject to a qualification:  where the psychiatric injury is consequential to the physical injury for which the defendant is responsible, the defendant is also responsible for the psychiatric injury even if this injury was unforeseeable.  See White v. Chief Constable of South Yorkshire Police, [1999] 2 A.C. 455 at 470, Varga v. John Labbatt, [1956] O.R. 1007, 6 D.L.R. (2d) 336 (H.C.);  Yoshikawa v. Yu (1996) 21 B.C.L.R. (3d) 318, 73 B.C.A.C. (C.A.);  Edwards v. Marsden, 2004 BCSC 590; Samuel v. Levi, 2008 BCSC 1447.

If a witness to a BC motor vehicle collision suffers psychological injuries as a result of what they see they can claim damages.  There are, however, restrictions on when these claims can succeed.  Reasons for judgement were released today addressing this area of law.

In today’s case (Deros v. McCauley) the Plaintiff witnessed a collision caused by an “inebriated” driver in 2001.  At the time the Plaintiff was working on Highway 97 near Bear Lake, BC.  The Plaintiff was installing rumble strips on the side of the highway.  The Plaintiff was operating a sweeper and his friend, (Mr. Lance) was operating a grinder nearby.  The Defendant lost control of a pickup truck and collided with the grinder.  The Plaintiff witnessed the crash and was concerned for his friend.  Fortunately Mr. Lance “was not seriously injured“.

The Plaintiff claimed the incident caused PTSD and sued for damages.  The Insurance company for the Defendant argued that even if the Plaintiff suffered from PTSD this injury was ‘too remote‘ and therefore not compensable.  Madam Justice Gerow agreed and dismissed the lawsuit.  In doing so the Court provided the following useful reasons addressing the restricted circumstances when a witness to a crash can successfully sue for psychological damages:

[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…

[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: James v. Gillespie, [1995] B.C.J. No. 442 (S.C.); Arnold v. Cartwright Estate, 2007 BCSC 1602; Easton v. Ramadanovic Estate (1988), 27 B.C.L.R. (2d) 45; Stegemann v. Pasemko, 2007 BCSC 1062; James v. Gillespie, [1995] B.C.J. No. 442 (S.C.); Kwok v. British Columbia Ferry Corp. (1987), 20 B.C.L.R. (2d) 318 (S.C.).

[24]         As set out in Devji v. District of Burnaby, 1999 BCCA 599 at para. 75, the courts have been careful to limit the circumstances in which injuries for nervous shock are awarded:

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 “fright, terror or horror”.

[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.

[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.

Reasons for judgement were released today by the BC Supreme Court, Vancouver Registry, addressing an interesting issue: whether alcoholism following accident related chronic pain is compensable in a tort claim.  In short, Mr. Justice Voith held that it could be.

In today’s case (Zawadzki v. Calimoso) the Plaintiff pedestrian was struck by a U-Haul truck driven by the Defendant.   The Defendant was found fully at fault for the collision.  The Plaintiff sustained various physical injuries the most serious of which was an elbow joint fracture which required three surgeries and resulted in a permanent partial disability.

Following the collision the Plaintiff began to drink in excess.  This turned into clinical alcoholism the extent of which caused serious health consequences.  In his lawsuit the Plaintiff claimed compensation not only for his physical traumatic injuries but also for the consequences of his alcoholism.  The Defendant argued that the Plaintiff cannot be compensated for this as it is ‘too remote‘.

Mr. Justice Voith addressed this issue at length and paragraphs 99-123 are worth reviewing in full for the Courts analysis.  Ultimately Mr. Justice Voith held that the Plaintiff’s alcoholism was caused in part by the consequences of the crash and was therefor compensable.  The Court provided the following reasons:

[99]         Shortly after the Accident, the plaintiff began to drink heavily. The results of blood tests performed on the plaintiff in late December 2004 indicated that certain liver enzyme levels were extremely elevated. The medical evidence uniformly establishes that such elevated results are directly referable to alcohol consumption. Dr. Smith confirmed that such elevated enzyme levels would not arise as a result of binge drinking, but rather reflected weeks or months of drinking.

[100]     The plaintiff admits he began to drink excessively after the Accident and that his alcohol consumption reached the point where he was drinking 26 ounces of vodka on a nightly basis. ..

[117]     In this case, Mr. Zawadzki’s original physical injuries were foreseeable. So too, the defendants concede, were his depression and anxiety. It was the combination of pain and mood that Drs. Shane and Smith said gave rise to the plaintiff’s excessive drinking. Dr. Smith also confirmed that Mr. Zawadzki had a “genetic predisposition”, by virtue of the alcoholism of his parents, to alcohol abuse. A genetic vulnerability to alcohol abuse is the very type of pre-existing susceptibility that the “thin skull” rule addresses.

[118]     It is clear that both a susceptibility to physical harm and to psychological harm fall within the ambit of the “thin skull” rule: Hussack at para. 143; Yoshikawa v. Yu (1996), 21 B.C.L.R. (3d) 318 (C.A.) at para. 19. I can see no principled reason why a similar vulnerability to an addiction disorder should be treated or viewed differently…

[123] I find that Mr. Zawadzki’s alcohol abuse was caused by the Accident and that such alcohol abuse was reasonably foreseeable.

(UPDATE October 27, 2011:  An appeal of the below decision was dismissed by the BC Court of Appeal on October 27, 2011. Despite upholding the trial result the BC Court of Appeal provided comments on the Duty of Care of CSA at paragraphs 58-61 differing from the below analysis.  The Court of Appeal concluded that “For policy reasons, CSA does not have a duty of care in negligence to hockey players who are injured while wearing certified hockey helmets“)

Earlier this week the BC Supreme Court, Victoria Registry, released reasons for judgement dismissing a lawsuit for compensation as a result of a traumatic brain injury sustained during a hockey game (More v. Bauer Nike Hockey Inc).

The incident occurred in 2004 when the Plaintiff was 17 years old.  He was playing an organized game of hockey.  He was wearing a helmet which was certified by the Canadian Standards Association (the “CSA”) and met all CSA standards.   During the game the Plaintiff fell into the boards and suffered a subdural hematoma.  This was apparently the only reported incident of a helmeted player sustaining a subdural hematoma while playing organized hockey in Canadian history.

The effects of the injury caused severe and profound disability in the Plaintiff.  The Plaintiff sued various Defendants including the manufacturer of the helmet and the CSA.  The Plaintiff alleged that the helmet was negligently manufactured and that the CSA was negligent in failing to adopt proper standards for helmet certification.  The Plaintiff’s claims were ultimately dismissed with the Court finding that the helmet was not defectively manufactured and that the standards set by the CSA were appropriate.

This case has received considerable press in Canada and abroad even gaining mention in the New York Times sports blog.  What interests me most about this case is not the ultimate result rather it was the Court’s discussion of the potential liability of institutions which set inadequate safety standards.

In the course of the lawsuit the CSA argued that even if their standards were unreasonably low they could not be sued because they did not owe the Plaintiff a duty of care.  Mr. Justice Macaulay disagreed and held that institutions that set certification standards for safety equipment can be sued in negligence if they set their standards too low.  Specifically the court held as follows:

212] I am satisfied that it was reasonably foreseeable that a hockey player and wearer of a mandatory certified hockey helmet might suffer harm if the CSA set the certification standard unreasonably low in the circumstances. On the question of proximity, I extrapolate from Cooper at paras. 32–34. Is the player, who must obtain and wear a certified helmet in order to participate in organized hockey, so closely and directly affected by the CSA decision respecting the adequacy of the certification standard that the latter ought reasonably to have the player’s legitimate interest in safety in mind? In my respectful view, the answer must be yes.

[213] By legislative definition, any hockey helmet that is not certified is a hazardous product and cannot be sold in Canada. No matter how well designed the helmet may, in fact, be, no manufacturer can offer it for sale unless it is certified. The consumer hockey player has no choice and buys, or otherwise obtains, the helmet for the purpose of self-protection in a game that has inherent dangers. Nonetheless, there is some reliance by the consumer on the fact of certification and an expectation that the risk of at least some injuries is reasonably reduced. Otherwise, there would be no need for any helmet at all.

[214] With the greatest of deference to the possibility that Hughes stands for a different outcome, I am satisfied that there is sufficient proximity in the present case for a prima facie duty of care.

In short, this decision means that if an institution sets certification standards for products to be sold in British Columbia that institution may be liable if their standards are set at an unreasonably low level.

If someone is injured/killed intentionally by someone else can a third party be held civilly liable for failing to prevent the harm?  While the answer to this question turns heavily on the facts the answer can be yes and earlier this month the Supreme Court of Canada released a decision discussing this complex area of personal injury law.

In Fullowka v. Pinkerton’s of Canada Ltd. nine workers were killed in the course of a contentious labour dispute.   During the bitter strike one of the strikers “evaded security and surreptitiously entered the mine.  He set an explosive device which, as he intended, was detonated by a trip wire, killing nine miners.”

The survivors of the dead miners brought a lawsuit against various parties including the mine’s owners, their security firm and the territorial government claiming damages for “negligently failing to prevent the murders“.

The lawsuit largely succeeded at trial but was overturned by the Court of Appeal.  The Supreme Court of Canada ultimately sided with the Court of Appeal but before dismissing the case highlighted some important legal principles addressing the need to take reasonable steps in certain circumstances to prevent foreseeable intentionally inflected harm at the hands of others.  Some of the highlights of the Court’s discussion were as follows:

The analysis turns on whether the relationship between the appellants and the defendants discloses sufficient foreseeability and proximity to establish a prima facie duty of care and, if so, whether there are any residual policy considerations which ought to negate or limit that duty of care… The analysis must focus specifically on the relationships in issue, as there are particular considerations relating to foreseeability, proximity and policy in each…

[19] In my view, the relationship between the murdered miners and Pinkerton’s and the government meets the requirements of foreseeability and proximity such that a prima facie duty of care existed.  I also conclude that these prima facie duties are not negated by policy considerations…

[26] In cases of this nature, the law requires close examination of the question of proximity. The inquiry is concerned with whether the case discloses factors which show that the relationship between the plaintiff and the defendant was sufficiently close and direct to give rise to a legal duty of care, considering such factors as expectations, representations, reliance and the property or other interests involved….  Proximity is not confined to physical proximity, but includes “such close and direct relations that the act complained of directly affects a person whom the person alleged to be bound to take care would know would be directly affected by his careless act”…

[27] The Court discussed proximity in detail in Childs, at paras. 31-46.  In Childs, as here, the proposed duty was to take care to prevent harm caused to the plaintiff by a third party; in other words, what was proposed there was a positive duty to act even though the defendant’s conduct had not directly caused foreseeable physical injury to the plaintiff. The Court noted that there are at least three factors which may identify the situations in which the law has recognized such duties (paras. 38-40).  The first is that the defendant is materially implicated in the creation of the risk or has control of the risk to which others have been invited.  The second is the concern for the autonomy of the persons affected by the positive action proposed.  As the Chief Justice put it: “The law … accepts that competent people have the right to engage in risky activities … [and] permits third parties witnessing risk to decide not to become rescuers or otherwise intervene” (para. 39). The third is whether the plaintiff reasonably relied on the defendant to avoid and minimize risk and whether the defendant, in turn, would reasonably expect such reliance….

The relevant question is whether the miners reasonably relied on Pinkerton’s to take reasonable precautions to reduce the risk.  The Court of Appeal found that was their reasonable expectation. This reasoning, in my view, supports rather than negates the existence of sufficient proximity.  The fact that, as the Court of Appeal noted, any higher expectation on the miners’ part would have been unreasonable was not relevant to the analysis.

[31] Pinkerton’s must have shared the miners’ expectation.  It was there to protect property and people. The whole point of its presence was to help secure the site so that the mine could continue to operate. The miners who continued to work during the strike made up a well-defined and identifiable group. Pinkerton’s surely ought to have expected that the very people it was there to protect would rely on it to exercise reasonable care in doing so.

[32] Pinkerton’s also undertook to exert some control over the risk..Pinkerton’s undertook to exert some control over everyone who came onto the property, including Mr. Warren…

[34] I conclude that the reasonable expectations of both the miners and Pinkerton’s as well as Pinkerton’s undertaking to exert some control over the risk to the miners supported the trial judge’s finding of proximity…

In reasons for judgement released today, the Supreme Court of Canada dismissed the appeal of a very peculiar case. In doing so they clarified the law regarding ‘forseeability of injury’ which is a necessary ingredient to prove in negligence cases.

While this case does not involve an ICBC claim, this case is important because ‘forseeability’ must be proven in all negligence cases, and this includes ICBC car accident tort claims.

The facts of this case are unusual. The Plaintiff allegedly sustained a psychiactric injury as a result of seeing dead flies in a bottle of water supplied by Culligan. He had used Culligan’s services for many years. As a result of this “he became obsessed with the event and its revolting implications for the health of his family”. He went on to develop a major depressive disorder with associated phobia and anxiety.

At trial he was awarded over $300,000 in compensation. The Ontario Court of Appeal overturned the verdict and thus this case was brought to the Supreme Court of Canada.

When suing for negligence (and this is the case in most ICBC car accident claims) a Plaintiff must prove 4 things:

1. That the defendant owed the Plaintiff a duty of care

2. That the defedant’s behaviour breached the standard of care

3. That the Plaintiff sustained damages

4. That the damages were caused, in fact and in law, by the Defenant’s breach.

The Supreme Court of Canada held that the Plaintiff met the first three tests to succeed in his action. It is the 4th test that the Plaintiff failed on and in explaining why the Supreme Court of Canada added some clarity to this area of law. The important portion of the judgement can be found at paragraphs 11- 18 which read as follow:

[18] It follows that in order to show that the damage suffered is not too remote to be viewed as legally caused by Culligan’s negligence, Mr. Mustapha must show that it was foreseeable that a person of ordinary fortitude would suffer serious injury from seeing the flies in the bottle of water he was about to install. This he failed to do. The only evidence was about his own reactions, which were described by the medical experts as “highly unusual” and “very individual” (C.A. judgment, at para. 52). There is no evidence that a person of ordinary fortitude would have suffered injury from seeing the flies in the bottle; indeed the expert witnesses were not asked this question. Instead of asking whether it was foreseeable that the defendant’s conduct would have injured a person of ordinary fortitude, the trial judge applied a subjective standard, taking into account Mr. Mustapha’s “previous history” and “particular circumstances” (para. 227), including a number of “cultural factors” such as his unusual concern over cleanliness, and the health and well-being of his family. This was an error. Mr. Mustapha having failed to establish that it was reasonably foreseeable that a person of ordinary fortitude would have suffered personal injury, it follows that his claim must fail.

If you are advancing and ICBC tort claim (a claim for damages against an at fault motorist insured by ICBC) you will have to keep the ‘forseeabilty’ test in mind and know the law as set out in this judgement.

The court also made an interesting comment about how the law views physical as compared to psychological injuries. At Paragraph 8 of the judgement, the court adopted the reasons from a 1996 case from the House of Lords which stated that “In an age when medical knowledge is expanding fast, and psychiatric knowledge with it, it would not be sensible to commit the law to a distinction between physical and psychiatric injury, which may already seem somewhat artificial, and may soon be altogether outmoded. Nothing will be gained by treating them as different “kinds” of personal injury, so as to require the application of different tests in law.”

It is good to know that the Supreme Court of Canada does not separate physical injuries from phychological injuries and treats both as real and compensable.

Do you have questions about this judgement or an ICBC injury claim that you wish to discuss with an ICBC claims lawyer? If so click here to contact ICBC Claims lawyer Erik Magraken for a free consultation.