BC Court of Appeal – Forseeability Is No Defense To Low Impact Collisions

Last year a BC Supreme Court level judgement dismissed a personal injury claim in part due to the logic that it is not foreseeable that someone will suffer injury in a low velocity impact collision in a parking lot. Today the BC Court of Appeal overturned this judgement finding the trial judge was wrong in their application of the foreseeability principle and that physical injury is foreseeable from collisions, even minor ones.

In addressing this point the BC Court of Appeal reasoned as follows:

[90]         The trial judge also concluded that the appellant had not established “the foreseeability that an injury would occur, from the facts in accidents 2, 3, and 5, in a person of ordinary fortitude”. He acknowledged that Mustapha was addressing mental injury, but held that the reasoning had application to claims of physical injury as well:

[52]      … Mustapha finds, in part, that there is a threshold test for establishing compensability at law, which precedes a so-called thin-skull analysis. Before a court will embark upon a thin-skull analysis, a plaintiff must first establish the foreseeability that an injury would occur, or could occur, in a person of ordinary fortitude…

[91]         A few paragraphs prior to this statement, the judge had found that the appellant was “highly susceptible to the ‘catastrophizing’ that her own doctor diagnosed in her”, that very small events could trouble her out of all proportion to what one could reasonably expect of anyone, and that she had suffered from physical and emotional problems for many years before accident #1 “having to do with her chronic obesity, nutritional problems, prolonged difficulties in the workplace, and other circumstances”. He then continued to find it “wholly improbable” that the appellant suffered, or could suffer damages from “the three parking lot episodes”.

[92]         I take from all of this that the judge found that if the appellant had suffered any injury, she had an extreme reaction, which a person of ordinary fortitude would not suffer.

[93]         It is my view that the judge erred in applying this principle from Mustapha in the circumstances of this case. While I agree with the respondents that the same duty of care and foreseeability analysis applies to claims in negligence for both mental and physical injury, Mustapha is concerned with mental injury; more particularly, what mental injury is sufficient to constitute damage (as discussed above), and what mental injury is foreseeable to establish legal causation.

[94]         It is also my view that the injuries asserted by the appellant were of a substantially different nature than the injury asserted in Mustapha. Mr. Mustapha had to show that it was reasonably foreseeable that a person of ordinary fortitude would suffer mental injury from seeing flies in the bottle of water. He failed to do so because his reactions were considered to be highly unusual and very individual. Here, the appellant had to show that it was reasonably foreseeable that a person of ordinary fortitude would suffer soft tissue injuries in one or more minor motor vehicle accidents, leading to chronic pain and other psychological problems. These are not the kinds of injuries that are too remote to allow recovery for negligence in a motor vehicle accident. The injuries may have been more serious than expected, less serious than asserted, or they may not have been established at all. But in my opinion, it cannot be said that they were not reasonably foreseeable.

forseeability, Greenway-Brown v. Kyung, Low Velocity Impact

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ERIK
MAGRAKEN

Personal Injury Lawyer

When not writing the BC Injury Law Blog, Erik is the managing partner at MacIsaac & Company, based in Victoria, B.C. He is also involved with combative sports regulatory issues and authors the Combat Sports Law Blog.

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