September 11, 2010- This tragic anniversary gives us pause to reflect on how important it is to protect human life. As a personal injury lawyer on the side of injury victims I have heard some of the most callous and heartless comments about injury claimants. Often overlooked are the survivors, left with permanent psychological trauma.
Thankfully, in British Columbia, when one person injures another money can be awarded to compensate the innocent victim for his or her losses. In Canada, this promotes safety in our public and private spaces and reaffirms our commitment to protecting and securing innocent lives.
An example of compensation for psychiatric injury involved a Vancouver mother that was involved in a car accident east of Golden, B.C. while on her way to Banff on a holiday trip with her family and friends. She was in the right rear seat, and her daughter, aged nine, was in the centre of the rear seat. Their vehicle crossed the centre line and collided with an oncoming vehicle. The injury claimant was knocked unconscious and her daughter died three days later.
After the collision, the claimant mother recalled seeing a person on a stretcher on the ground beside the automobile. She did not know who it was and could not recall seeing her daughter. She was not told of her daughter’s death until a few days later. She explained her emotional response on learning of the donation of her daughter’s organs by stating that she found out that it had taken three days for her daughter to die and she had never been given the opportunity to see her and say goodbye properly.
The mother claimed “nervous shock” and the B.C. court concluded that it was reasonably foreseeable that the negligence of the driver could cause psychiatric injury to the mother. Furthermore, it is foreseeable that emotional or psychological injury would be done to a mother whose child has been killed in circumstances such as those here. There was a sufficiently close relationship between the mother and negligent driver to establish a duty of care.
If the mother had not been knocked unconscious in the accident, it seems inevitable that recovery for her psychiatric injury would have followed. Had she observed the death of her daughter, it would most certainly have been alarming, frightening and horrifying. However, Justice Clancy observed that denying compensation to the mother would lead to the unusual finding that by inflicting greater injury on a plaintiff, a defendant could limit his liability.
Justice Clancy concluded that the aftermath of an accident must include learning of the accident after emerging from a period of unconsciousness especially where the injury claimant was herself injured in the accident. That would be as alarming, frightening, unexpected and horrifying as observing the accident.
Justice Clancy applied the B.C. Court of Appeal decision of Devji v. District of Burnaby (19 October 1999) which followed Athey v. Leonati, [1997] 1 W.W.R. 97, 3 S.C.R. 458 (Supreme Court of Canada), and held that proof of precise causation between the shock and the psychiatric illness is not necessary. It is sufficient that shock was a materially contributing factor. Justice Clancy also referred to Devji in stating that the term “nervous shock” has been largely abandoned in favour of “psychiatric injury”.
The claimant mother was awarded $ 275,000.00 which included loss of future contributions from her daughter, pain, suffering and loss of amenities, loss of future income, past loss of income, cost of future care, the services of a financial manager and court order interest at the Registrar’s rates in respect of pecuniary damages. Posted by Mr. Renn A. Holness
Issue: Should psychiatric injury be compensated?
