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.