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:
 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,  UKHL 1; Jolley v. Sutton London Borough Council,  UKHL 31; Ontario (Minister of Highways) v. Côté,  1 S.C.R. 595….
 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,  2 A.C. 455 at 470, Varga v. John Labbatt,  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.