PTSD Claim Succeeds For Mistaken Plaintiff Belief That Defendant Killed in Crash

The law in British Columbia has developed to recognize that people witnessing a crash can be compensated in certain circumstances if the event causes psychological injury to them.  While PTSD is a common diagnosis the law developed using the term “nervous shock” and the following principle as been applied in BC
[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”.

Reasons for judgement were published last week by the BC Supreme Court, Vancouver Registry, noting ICBC agreed to pay damages to a Plaintiff who developed PTSD after a collision based on the mistaken belief that the Defendant was killed.  It is worth noting that this case involves a Plaintiff and Defendant who were both involved in the crash, as opposed to a bystander, but the circumstances are such that the Plaintiff did not suffer any harm from the forces of the crash themselves or concern for their well being but rather solely based on their concern for the Defendant.
In the recent case (Lutzke v. Beier) the Plaintiff was a conductor operating a train and the Defendant pulled her vehicle into the Plaintiff’s path.  A collision occurred and the Defendant accepted fault .  The Plaintiff “thought for a time that the driver had been killed and that there had been a child in the vehicle who was either killed or seriously injured.  As it turned out, Ms. Beier was not killed and there had been no one else in the vehicle.”.
The plaintiff advanced claims for various heads of damages which were ultimately not successful.  ICBC was persuaded, however, to pay damages for the PTSD the Plaintiff suffered as evidenced by the following passage in Mr. Justice Milman’s reasons for judgement:

[2]            Liability for the accident has been admitted.  It is common ground that Mr. Lutzke developed post-traumatic stress disorder (“PTSD”) as a result of the accident and that he has since recovered sufficiently to return to work full time.  Despite his return to work, however, Mr. Lutzke says that he continues to suffer from increased anxiety and remains vulnerable to a relapse of PTSD, particularly if he experiences another traumatic event.

[3]            The parties have agreed on the quantum of all but two of the heads of damages claimed.  What remains in issue is Mr. Lutzke’s entitlement to damages for: (a) future loss of income earning capacity, including future pension benefits; and (b) the cost of future care.