Skip to main content

Worker Ordered To Pay $561,000 in Damages for Assaulting Former Supervisor

Written by admin on . Posted in ICBC Brain Injury Cases, ICBC Psychological Injury Cases, ICBC PTSD Cases.

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:
[72] 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…

[75] 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.

[76] Mr. Weber’s 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.

$125,000 Non-Pecuniary Assessment For Fractured Ankle and Psychological Injuries

Written by admin on . Posted in ICBC Ankle Injury Cases, ICBC Chronic Pain Cases, ICBC Psychological Injury Cases, ICBC PTSD Cases, Uncategorized.

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.

[7] She continues to suffer from her ankle injury, sleep disturbance, headaches, stress, anxiety, including post-traumatic stress disorder (“PTSD”), depression and chronic pain…

[72] 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.

Private MRI Cost Recovered as Special Damages in Injury Claim

Written by admin on . Posted in ICBC Back Injury (soft tissue) Cases, ICBC Psychological Injury Cases, Uncategorized.

Further to my recent post on this topic, reasons for judgement were released last week by the BC Supreme Court, New Westminster Registry, addressing the recovery of private MRI costs in a personal injury lawsuit.
In last week’s case (Piper v. Hassan) the Plaintiff was injured in a 2006 rear-end collision.  The Defendant admitted fault for the crash.  The Plaintiff suffered soft tissue injuries and an aggravation of pre-existing back pain and depression.  The Plaintiff sought substantial damages at trial although much of the claim was not accepted with the Court finding that much of the Plaintiff’s symptoms would have occurred absent the collision due to pre-existing degenerative changes in the plaintiff’s back.
In the course of the lawsuit the Plaintiff obtained a private MRI.  At trial the Plaintiff sought to recover the cost associated with this.  The Defendant opposed this arguing it was not a reasonable expense.  Mr. Justice Pearlman disagreed and allowed recovery of this item.  In doing so the Court provided the following reasons:
[172] Mr. Piper also paid $1,975 for the full spine MRI performed May 18, 2007. The defendant submits this was an unnecessary expense. I disagree.  Dr. McGrath had recommended an MRI study. At a time when the plaintiff was experiencing increased back pain and sought medical advice to determine its cause and possible treatment, it was not unreasonable for him to pay for a private MRI, rather than wait in line for publicly funded radiology. The full spine MRI assisted both Dr. Yu and Dr. McGraw in their diagnoses of the extent of the plaintiff’s injuries attributable to the motor vehicle accident, showed the progression of degenerative changes to the plaintiff’s spine, and aided Dr. McGraw in forming his opinion that the plaintiff had not suffered a disc herniation. I find that the plaintiff is entitled to recover $1,975 for the MRI study.

$85,000 Non-Pecuniary Damage Assessment For Depression and Anxiety

Written by admin on . Posted in ICBC Psychological Injury Cases, Uncategorized. 45 Comments on $85,000 Non-Pecuniary Damage Assessment For Depression and Anxiety

Reasons for judgement were released last week by the BC Supreme Court, Vancouver Registry, assessing damages for accident related anxiety and depression.
In last week’s case (Yeung v. Dowbiggen) the Plaintiff was involved in 4 separate rear-end collisions.   These spanned from 2008-2011.  Fault was admitted by the rear motorist in each of the crashes.  The Plaintiff alleged that as a result of these crashes she suffered from Post Traumatic Stress Disorder.  While this diagnosis was ultimately rejected by the trial judge, the Court did conclude that these collisions caused depression and anxiety.  These conditions remained symptomatic at the time of trial.  In assessing non-pecuniary damages at $85,000 Madam Justice Humphries gave the following reasons:
[103] Taking into consideration all of the evidence and the opinions of these three doctors, I do not accept that Ms. Yeung has post traumatic stress disorder, although she apparently has some symptoms of it.  I accept that she has a mild condition of depression and anxiety caused by these accidents, and that it did not, in any significant fashion, pre-date the accidents…

[119] Ms. Yeung is, as Dr. O’Shaughnessy said, vulnerable and emotionally young for her age, but I also accept that there is validity to Dr. Levin’s concern that she has some secondary gain from the devoted attention of her father, her boyfriend and Dr. Guest.

[120] However, it is extremely unfortunate that Ms. Yeung has suffered a series of accidents and that her recovery has been set back regularly and incrementally as a result.  Even a strong person would have difficulty dealing with a steady recurrence of similar accidents.  The effect of four sequential accidents is, according to the medical experts, cumulative, and each time she begins to start to improve and return to a better level of functioning, she has been hit again, which causes a regression in her improvement with an overall cumulative effect on her life.  While the physical symptoms are not extreme, they are still persisting and the psychological effect of the repeated events has seriously affected Ms. Yeung’s ability to enjoy life for a protracted period of time.  While it is likely she will continue to improve if she is fortunate enough not to be involved in more accidents, she has already spent four years in a state of turmoil and physical pain.

[121] Several of the cases referred to by the plaintiff are concerned with injuries with effects that are described as severe and devastating; in one case the plaintiff was competitively unemployable, in another the plaintiff could no longer work at the profession he had trained for.  In my view, the cases submitted by the defendant are of more assistance.  Considering all the evidence within the context of the cases referred to me, and considering that Ms. Yeung has undergone the effects of four accidents, I set non-pecuniary damages at $85,000.

$75,000 Non-Pecuniary Damage Assessment for Chronic Soft Tissue Injuries and PTSD

Written by admin on . Posted in ICBC Back Injury (soft tissue) Cases, ICBC Psychological Injury Cases, ICBC Soft Tissue Injury Cases, Uncategorized.

Reasons for judgement were released last week by the BC Supreme Court, Vernon Registry, assessing damages arising from injuries sustained a motor vehicle collision.
In last week’s case (Smith v. Williams) the Plaintiff was a young veterinarian.  She was involved in a 2009 collision.  The Defendant crossed the centre-line and caused a head-on collision.  The Plaintiff sustained chronic soft tissue injuries and Post Traumatic Stress Disorder (PTSD).  The Plaintiff’s symptoms were on-going at the time of trial.  In assessing non-pecuniary damages at $75,000 Mr. Justice Betton provided the following reasons:

[33] The plaintiff indicated that the accident has left her with a feeling of vulnerability. She is very anxious in a motor vehicle, especially on highways, envisioning accidents unfolding. There are occasional panic attacks. She gets a tingling and pain down her right arm that is aggravated by repetitive motion and particular movements or positions. One of these, I note, was holding her child while breastfeeding. Others relate to her work as a vet.

[34] She spoke of how the physical and psychological injuries have adversely affected her enjoyment of her wedding and her regret for how she reacted to the stresses associated with the wedding toward her husband. For her part, the plaintiff indicates that she simply battles through her restrictions. She says that the more physically demanding her day, the greater the consequences in symptoms…

[43] This plaintiff is a young professional, early in her career. She has historically been a high-achiever, endowed with intelligence, motivation and physical ability. The motor vehicle collision came as she was planning her wedding and the purchase of a business. Her wedding, as described by her, was not the enjoyable experience that she, as a young woman, had dreamed of.

[44] The purchase of the business completed, and she has been able to live up to the work demands of that practice, facilitated in part by the fact that it is less demanding than work she did prior to acquiring the practice. In addition, her absence for maternity leave coincided with her rehabilitation. She has actively engaged in rehabilitation during all of the significant developments in her life, including being a new mother. The Post Traumatic Stress Disorder symptoms linger and also influence the enjoyment of an activity which is part of everyday life, that is, driving…

[53] Taking what one can from those authorities and applying the general principles, as referenced in Stapley, it is my conclusion that an appropriate award for general damages is $75,000.

$200,000 Non-Pecuniary Damage Assessment For Chronic Physical and Psychological Injuries

Written by admin on . Posted in ICBC Ankle Injury Cases, ICBC Chronic Pain Cases, ICBC Psychological Injury Cases, ICBC PTSD Cases, ICBC Shoulder Injury Cases, ICBC Wrist Injury Cases, Uncategorized.

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:




[30] 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.

[31] 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…

[33] Ms. Felix’s 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.

[34] 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.

[35] 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…





[38] 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…
[47] 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’s 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.

$100,000 Non-Pecuniary Damage Assessment For Chronic Pain and Depression

Written by admin on . Posted in ICBC Chronic Pain Cases, ICBC Psychological Injury Cases, Uncategorized.

(Update: June 11, 2012 – With the exception of a modest decrease in the damage award for Cost of Future Care, the below decision was upheld by the BC Court of Appeal in reasons for judgement released today)
Adding to this site’s chronic pain non-pecuniary damages archives, reasons for judgement were released this week by the BC Supreme Court, Vancouver Registry, assessing damages for chronic pain and depression.
In this week’s case (Tsalamandris v. MacDonald) the Plaintiff was involved in two collisions, the first in 2004 and the second in 2006.  The Defendants admitted fault in both claims.  The Plaintiff suffered from “chronic pain and a depressive disorder which is quite debilitating“.  The cause of the Plaintiff’s disability was the main focus of trial with the Plaintiff arguing the collisions were responsible while the Defendants pointed to other explanations.
Ultimately the Court found that the the collisions were responsible for the Plaintiff’s injuries.  These were expected to be largely disabling for the duration of the Plaintiff’s career.  In assessing non-pecuniary damages at $100,000 Madam Justice Griffin provided the following reasons:
[223] I therefore conclude that but for the Accidents, the plaintiff would not have suffered the chronic pain and depression she suffered following the Accidents and continuing to this day and into the future.  The plaintiff has proven that the Accidents caused her conditions of chronic pain syndrome and depression…









[332] The plaintiff had an active lifestyle prior to the Accidents, did many outdoors things with her husband and got along well with others.  The minor discomfort she experienced on occasion stemming from the 2001 accident did not interfere with her activities.

[333] The changes she has gone through since the 2004 and 2006 Accidents have been dramatic.  Her chronic pain and chronic depression mood have had a very negative impact.  She has said very hurtful things to her mother and her husband. She has not been able to properly take care of her children and she does not get the same joy out of life as she used to do…

[336] The plaintiff cites a number of cases that suggest that an award of damages for loss of enjoyment of life and pain and suffering (non-pecuniary damages) in similar circumstances should be in the range of $85,000.00 to $125,000.00:  Beaudry v. Kishigweb, 2010 BCSC 915; Eccleston v. Dresen, 2009 BCSC 332; Kasidoulis v. Russo, 2010 BCSC 978; Poirier v. Aubrey, 2010 BCCA 266; Zhang v. Law, 2009 BCSC 991; and, MacKenzie v. Rogalasky, 2011 BCSC 54 (the latter cited by the defendants for other reasons).

[337] The authorities can only serve as general guidelines.

[338] Given the plaintiff’s age, the stage of her life when she was injured, as a young mother, the ongoing and severe nature of her injuries which negatively affect every aspect of her daily life and her relationships with those around her, including with her children, her husband and her parents, I conclude that a fair and reasonable award for the loss of her enjoyment of life and her pain and suffering is $100,000.00.










BC Court of Appeal Discusses Forseeability Limits With Psychiatric Injuries

Written by admin on . Posted in ICBC Head Injury Cases, ICBC Psychological Injury Cases, Uncategorized. 52 Comments on BC Court of Appeal Discusses Forseeability Limits With Psychiatric Injuries


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.

More on the Limits of "Nervous Shock" Claims

Written by admin on . Posted in ICBC Psychological Injury Cases, ICBC PTSD Cases, Uncategorized. 47 Comments on More on the Limits of "Nervous Shock" Claims

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:

[21]         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:

[75]      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”.

[76]      The nature of the experience by which an injury is alleged to have been suffered is one of the “controlling mechanisms” 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’s 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’s 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.

[77]      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.

[22]         Here, Mr. Toukaev learned of Ms. Toukaeva’s 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’s 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.

PTSD Claim By Accident Witness Dismissed as "Too Remote"

Written by admin on . Posted in ICBC Psychological Injury Cases, ICBC PTSD Cases, Uncategorized. 116 Comments on PTSD Claim By Accident Witness Dismissed as "Too Remote"


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.