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.
(Note: The below case was varied slightly on Appeal. Click here to access the BC Court of Appeal’s reasons)
Reasons for judgement were released today by the BC Supreme Court, Vancouver Registry, awarding just over $1.3 million in total damages as a result of serious and disabling psychological injuries.
While today’s case (Hussack v. School District No. 33) is not an ICBC claim or even a motor vehicle claim it is a case that is worth reviewing as it is only one of a handful of cases addressing serious psychological injuries that proceed to trial in any given year in BC.
In today’s case 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. In awarding $125,000 for the Plaintiff’s non-pecuniary damages (pain and suffering) the court summarized the injuries as follows:
 For much the same reasons as I noted earlier in addressing the causation issue, I am unable to isolate the symptoms directly related to the mild concussion injury from the somatic symptoms which followed. As Dr. Foti noted, even in the immediate post-accident phase, it is difficult here to unravel the post-concussion symptoms from the somatic symptoms since they are essentially intertwined. As I have chronicled earlier in these reasons, the immediate mild headache evolved and morphed over a brief period to include continuing headaches, head pain, photophobia, shaking and tremours, temperature control issues, and generalized joint pain.
 As I have already noted earlier, I reject the notion that Devon’s somatic complaints all pre-dated the accident, and that regardless of the injuries suffered in the accident Devon would have developed the somatoform disorder from which he now suffers. In my view he is entitled to full compensation for same.
 While Devon returned to school following the accident, he was unable to cope in a regular Grade 8 setting and attempted to complete his studies first in a Hospital Homebound program and later by way of distance education. Despite his obvious intellectual abilities he has never progressed beyond a Grade 9 or 10 schooling level.
 While he initially ventured outside the home to meet with friends, he has gradually become more and more isolated and for the last several years has spent the majority of his time at home, primarily on the second floor of the house where a large den/games room has been set up to meet his needs. As Dr. O’Shaughnessy describes in his report of June 12, 2008, Devon lives a lifestyle which is entirely antithetical to what one would hope for an individual managing chronic pain:
He basically has no structure or set pattern to his day. He will never rise or go to bed at any set pattern and eating habits are variable day to day. He engages in virtually no activity or exercise. His only exercise appears to be going on the treadmill once every two weeks for anywhere from two to ten minutes duration. He rarely leaves the home and claims that even walking up the block is too demanding. At this point, his father quite literally waits on him 24 hours a day to the degree where his father does all the cooking, cleaning, shopping, etc and prepares (Devon’s) food and brings it to him. Father and son indicate this pattern has been going on for some time as they feel (Devon’s) joints get too sore when he climbs down stairs to obtain food and/or his tremor limits him from carrying any liquids or pouring liquids etc. …He has become extremely deconditioned which by itself could lead to some of the complaints of pain described…..
 Since Devon’s situation has continued for approximately 10 years, the experts all agree Devon’s prognosis is very guarded and that his present situation “will not easily change” (Dr. O’Shaughnessy report, Exhibit 20, Tab 15) unless there is intensive, prolonged intervention. Dr. Nairne Stewart has opined that even with prolonged and intensive treatment, there is only a “minor hope that (Devon) might again become functional”. Even assuming such intervention, Dr. Krywaniuk believes it is possible that following the removal of his present support structure (ie. the belief that he is indeed brain damaged and has suffered true physical injuries), Devon may become significantly depressed and perhaps even suicidal.
 In these circumstances and relying upon previous case authorities where awards in the range of $75,000–$100,000 have been made in the case of individuals suffering somatoform disorders, the plaintiff submits an appropriate award would be $135,000, thus accounting for Devon’s youth and the fact that he effectively faces a lifelong, life-altering disability (Edwards v. Marsden; Samuel v. Levi; Yoshikawa).
 I agree that in the circumstances of this case, considering that Devon has been substantially disabled since the age of 13, and now faces a bleak prognosis, struggling to achieve any measure of a mentally and physically healthy life, the appropriate award ought to exceed that made in Edwards, Samuel, or Yoshikawa. In the circumstances, I award the sum of $125,000 for non pecuniary damages.
The reasons delivered by Madam Justice Boyd go on for over 250 paragraphs but are worth reading in their entirety for anyone interested in psychological injury cases in BC. The Court deals extensively with the law of causation, the thin skull principle, the crumbling skull principle, foreseeability, intervening causative forces and other interesting and sometimes complex issues that often come up in psychological injury litigation.
If you would like further information or require assistance, please get in touch.
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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