In this Psychiatric personal injury claim (Hussack v. Chilliwack School District No. 33, 2011 BCCA 258) the 13 year old injury claimant was hit in the face with a field hockey stick while playing the game at school. He suffered a concussion which developed into a serious psychiatric illness called somatoform disorder. This disorder has left him with significant difficulties which he believes are physical in origin, but in reality originate in this mental disorder.
The School Board blamed the claimant’s father for the development of the psychiatric disorder, the conduct which they say included: endless investigations; overprotection; failure to obtain counselling for his son; failure to allow his son to return to school and to exercise; failure to provide his son with prescribed medications; failure to stop providing his own prescription narcotics to his son, which caused the injury claimant to develop a drug dependency; failure to bring his son to medical appointments; and failure to follow the advice of medical practitioners.
The trial judge found the teacher negligent for failing to put the boy into progressive lessons and determined that the blow to the head was a factual cause for mental disorder. The trial judge awarded the following :
| Pain and suffering | $ | 125,000 |
| Past loss of income | $ | 200,000 |
| Future loss of income earning capacity | $ | 1,000,000 |
| Future care costs | $ | 40,000 |
| TOTAL: | $ | 1,365,000 |
The School Board in Chilliwack, BC appealed all the finding of the trial judge. In this decision the Court of Appeal of British Columbia upheld the finding of cause in fact and cause in law. The awards for past and future loss of income were nominally reduced by 25% to account for negative contingencies.
The Court of Appeal makes no new law regarding causation but rather seems to fully embrace this dichotomy between factual and legal cause in personal injury cases. More importantly this injury case sets out the law regarding the behaviour of parents being regarded as “intervening causes” and helps prevent insurance companies from blaming overzealous parents for the kids suffering a mental disorder as a result of personal injury. As the Court of Appeal stated,
” [77] The defence of novus actus interveniens is successful when the new act is of sufficient magnitude to break the chain of causation: It was stated this way in Mitchell v. Rahman, 2002 MBCA 19, 209 D.L.R. (4th) 621:
[30] A novus actus interveniens absolves the original wrongdoer of legal liability (or of further liability) where the later act or event is of such a quality as to cause a break in the chain of causation. Whether or not the intervening conduct amounts to a novus actus interveniens is a question that has plagued the courts for centuries….
[86] In my view, the “family cases” do not create new law, but simply apply existing principles to the findings of fact in somewhat unusual cases. The trial judge addressed the “family cases” in her reasons for judgment at some length. In the result, she found that Mr. Hussack’s conduct did not constitute a “new act” which broke the chain of causation. Thus, she concluded that novus actus interveniens had no application.
[87] In my view, the trial judge properly addressed the issue of foreseeability in addressing the question of whether Mr. Hussack’s conduct constituted a novus actus interveniens. She recognized that defendants should not be held liable for objectively unforeseen consequences of their actions. See Martin v. McNamara Construction Company Limited and Walcheske, [1955] 3 D.L.R. 51 at 54-55 and Ken Cooper-Stephenson, Personal Injury Damages in Canada, 2nded. (Scarborough: Carswell, 1996) at 827-28.
[88] The question of whether a subsequent act breaks the chain of causation is a question of fact: Mitchell, supra, at para. 31. As such, the finding is only reviewable if there is a palpable and overriding error.
[89] The trial judge concluded that it was foreseeable that Mr. Hussackwould conduct himself generally in the manner he did. There was evidence to support this finding. I would not give effect to this ground of appeal.” Posted by Mr. Renn Holness
Issue: Is there really a difference between cause in fact and cause in law or is it simply the separation of the assessment of liability and damages?
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