Nervous Shock Claims – Developments In Duty Of Care

Nervous Shock Claims – Developments In Duty Of Care

By: Jessica DiFederico, Christian Breukelman and Grace Murdoch

It goes without saying that a traumatic or distressing event can cause somebody great stress and anxiety, even if it did not cause them physical injury.  Such an injury is described in the case law as “nervous shock”.  Nervous shock claims result from mental or psychiatric injuries which are sustained by a plaintiff as a result of another person’s negligent act.[1]

That said, not all psychological injuries are compensable at law.  Such claims can arise in all sorts of circumstances, some of which may give rise to liability while others do not.  This paper focuses on one type of nervous shock claim we see – which involves psychological injury to a plaintiff who either witnessed or heard about an accident that caused traumatic injury or death to another person.

Claims like this often rise or fall on the duty of care issue.  This is because the plaintiff was not the one who was involved with the accident, they were connected to the accident some other way, such as by being a witness to the accident or the family member of a victim.

Below, we provide an overview of the legal framework for nervous shock claims, review some of the recent developments in the case law, and discuss when a nervous shock claim can be dealt with on summary judgment or by motion to strike.

The Duty of Care Analysis

The starting point for any negligence claim, including those for nervous shock damages, is determining whether the defendant owes the plaintiff a duty of care. If no duty of care is owed, the plaintiff’s claim cannot succeed.

The test for duty of care is set out in the English case of Anns v. Merton London Borough Council,[2] which was adopted by the Supreme Court of Canada in Cooper v. Hobart.[3]  It involves the following three steps:

  1. Has the duty of care alleged has already been recognized at law?
  2. If no duty of care has been previously recognized, the court must determine whether one should be. This requires an analysis as to whether the relationship between the parties is sufficiently proximate and whether the injury alleged was foreseeable.  If both these factors are present, a prima facie duty of care will arise.
  3. If a prima facie duty of care arises, the court will consider if there are any public policy considerations that weigh against recognizing one in the circumstances.

The duty of care analysis in many negligence claims will end at the first part. This is because there are categories of common relationships (such as a doctor/patient relationship) that the courts have already accepted as giving rise to a duties of care.

Nervous shock claims may not involve such a previously recognized relationship.  For example, it is generally not controversial that a duty of care may be owed by one driver to another in relation to a motor vehicle accident. A claim for nervous shock by a family member of an accident victim, however, would generally not fall into the scope of this recognized duty.

In Saadati v Moorhead,[4] the Supreme Court of Canada confirmed that nervous shock claims are subject to the same test for duty of care. It rejected outdated concepts that used to specifically apply to nervous shock claims such as a need for “temporal” “geographic” or “relational” proximity and it confirmed that the duty of care analysis does not turn on whether the plaintiff experiences a shocking event (a “primary victim”) or witnesses that event (a “secondary victim”).[5]

Recent Cases on the Duty of Care Issues

Following the Supreme Court of Canada’s release of the Saadati decision, lower courts have been faced with determining the scope of nervous shock claims.  Three recent cases illustrate this struggle and the duty of care issues that can arise in these actions.

I – Snowball v. ORNGE

Justice Faieta’s 2017 decision in Snowball v ORNGE followed shortly after the Saadati decision and gave the impression that the courts may be willing to entertain a wider range of nervous shock claims going forward.[6]

The facts of this case involved the crash of an air ambulance helicopter operated by ORNGE. Christopher Snowball, a paramedic, was killed in this incident. The plaintiffs, Mr. Snowball’s daughter and parents, brought a negligence action seeking damages for the mental distress they suffered as a result of the news of their family member’s death. Two of the defendants brought a Rule 21 motion to strike their claims, arguing that they did not owe a duty of care to the plaintiffs.

It is apparent from the motion decision that the moving defendants attempted to rely on the primary/secondary victim analysis. In other words, since the family members were not a part of the accident, they were not owed a duty of care.  As this type of analysis was expressly disavowed by the Supreme Court of Canada in Saadati, the moving defendants were unsuccessful on the motion and the plaintiffs’ pleadings were allowed to stand.

While the moving defendants were not successful on this motion, we do not see this decision as expanding the availability of nervous shock claims. Rather, it should be taken only to re-iterate the necessity to undergo the “robust” duty of care analysis called for in Saadati.

II – Sigurdson v. Norbord

In 2021, Justice Nieckarz considered the Snowball decision in the context of a nervous shock claim brought by the family members of an individual following a workplace fatality in Sigurdson v Norbord.[7]  This was the first reported decision in Ontario to comment on Snowball.

The facts of this case are important to its outcome. Joshua Sigurdson died while performing his employment duties at a remote logging site. The coroner determined that he lost consciousness due to a previously unknown heart issue and passed away due to hypothermia. Norbord was alleged to have acted negligently in failing to dispatch search teams in a timely manner. Mr. Sigurdson’s father went searching for his son and ultimately found him deceased.

Mr. Sigurdson’s father, mother, and sister brought an action against the employer and the occupier of the lands on which Mr. Sigurdson passed away in negligence seeking nervous shock damages. They also made claims under the Family Law Act; however, those were not at issue in this motion.

The defendants brought a Rule 21 motion arguing that the plaintiffs’ negligence claim should be struck as it had no reasonable prospect of success. As opposed to the primary/secondary analysis that the defendants in the Snowball decision relied on, the defendants in this case engaged in the duty of care analysis set out in Saadati and argued that the relationship between themselves and the plaintiffs was not proximate and that policy reasons vitiated against recognizing a duty of care in the circumstances.

Justice Nieckarz struck the claims of Mr. Sigurdson’s sister and mother, noting:

The relationship between the alleged tortfeasor and the victim must be “of such nature that the defendant may be said to be under an obligation to be mindful of the plaintiff’s legitimate interests in conducting his or her affairs”. See: Saadati v. Moorhead, at para. 24.

In the present case there is no direct relationship between [the mother] and [the sister] and the Defendants. The only connection is through [Mr. Sigurdson] as the deceased and [the father] as rescuer/witness to the aftermath. Their relationships are also not close enough to give rise to an obligation to be mindful of their interests.[8]

Their claims were also struck for policy reasons. Specifically, Justice Nieckarz was concerned of the possible indeterminate liability that could arise if family members with no direct connection to an alleged tortfeasor could be permitted to bring nervous shock type claims:

The concern raised by the negligence claims of [the mother] and [the sister] relate to claimant indeterminacy. If an employer such as Norbord owed a duty of care to every sufficiently close family member of its employees, it would lose meaningful control over the class of potential plaintiffs who may bring a claim against it. It would be impossible for Norbord to even know who it owed a duty to, as this would require contemplation of how many family members have close ties to each of its employees. Conceivably, this could extend to extended family members such as aunt, uncles, cousins, grandparents and others, depending on the circumstances of the individual employee. It could extend to close personal friends who are closer to the injured or deceased victim than their extended family members. There is also the risk of a duty of care being imposed towards family members who may appear close in class (i.e. sibling), but who in fact have no close relationship to the employee. The potential for liability becomes unwieldy.[9] 

The father’s claim, however, was allowed to proceed to trial. This is because there is an old line of cases permitting “rescuers” to sue in negligence for nervous shock damages. As the father rushed to the scene only to find Mr. Sigurdson deceased, Justice Nieckarz found that his claim may fit under this case law.

This case is important as it applies the test set out in Saadati in the context of a nervous shock claim and is strong precedent to suggest that they will not be successful where a family member is merely told of an accident.

III – Labrosse v. Jones

Shortly after the Sigurdson decision, the court once again had the opportunity to consider the extent to which a tortfeasor may owe a duty of care to the family members of an accident victim. This decision involves an interesting twist, as it shows how the increasing prevalence of technology may affect the proximity analysis.

Labrosse v Jones[10] involved a motor vehicle accident. This decision followed a motion for summary judgment to dismiss the nervous shock claims of the mother of the accident victim. While the mother was neither involved in the accident nor physically present at the scene, her daughter called her just before and then immediately after the accident.  Justice MacLeod described the scene as follows:

As the statement of claim and the affidavit evidence disclose, Ms. Mitchell was driving the plaintiff’s automobile and had stopped at a red light.  She called her mother from the vehicle just before the collision and then again immediately afterwards.  At the time of the second phone call, Ms. Mitchell was injured and was trapped in the vehicle because the driver’s door had been damaged.  She was in a state of panic.

Not only did Dr. Labrosse listen to her injured daughter incoherent and in distress attempting to deal with the aftermath of the accident, but according to the plaintiff the situation was exacerbated by the behaviour of Steven Jones who was the driver of the at fault vehicle. Allegedly Mr. Jones behaved in a threatening and belligerent fashion and attempted to prevent Ms. Mitchell from summoning aid or contacting the police.

Dr. Labrosse listened on the phone while her daughter tried to exit the vehicle in a state of confusion and while she attempted to deal with Mr. Jones. As summarized in the factum, “Dr.  Labrosse thus witnessed the immediate aftermath of the collision auditorily as she attempted to help Ms. Mitchell process and cope with the circumstances”. According to the pleading, Dr. Labrosse was “present at the scene of the accident in the aftermath of the accident by means of a mobile telephone and as a result of the catastrophic injuries inflicted upon Emma Mitchell in the accident, the plaintiff … has suffered psychological injuries.”[11]

The mother’s nervous shock claim was brought on her theory that she had actually been present for the accident and suffered psychologically as a result.  Justice MacLeod acknowledged that it was “farfetched” to include a person phoned by an accident victim in the same class as a person who is present at an accident and did not accept that there was a recognized duty of care owed to the mother.

That said, Justice MacLeod found that the circumstances raised genuine issues for trial and dismissed the motion, noting:

[…] in light of the omnipresence of digital communication and the rejection of arbitrary proximity factors in Saadati, it is difficult to justify a distinction between a plaintiff who was present at an accident and saw or heard it and a plaintiff that was able to hear the accident while connected by a car phone.  The foreseeability analysis at either the duty of care stage or at the remoteness of damages stage in a novel case may require nuanced findings of fact that are genuine issues best resolved at trial.[12] 

While ultimately the Jones decision reiterates the principles established by the Supreme Court of Canada in Saadati, it shows how our increasing connectedness by way of technology can complicate the analysis.

IV – Recent case law in other contexts

While the above cases illustrate how nervous shock claims are treated in the context of an accident, these are not the only circumstances in which they can arise. Since the decision in Saadati, others include:

  1. Meekis v Ontario (AG):[13] In a claim for mental distress following a coroner’s investigation, Justice Fregeau found that a duty of care did not arise between the coroner and the deceased individual’s family.
  2. Wawrzyniak v Livingstone:[14] In a nervous shock claim arising in the context of a medical malpractice claim, Justice Cavanagh found that a duty of care did not arise between a doctor and the patient’s family.
  3. Lavery v. Community Living British Columbia[15]: A mother brought a nervous shock claim in relation to her child’s treatment in a residential care home for children with disabilities. Justice Punnett found that the duty of care analysis fell short on proximity and for policy reasons.

 

The Family Law Act

While the family members of an injured person is often unable to bring their own negligence claims, they may not be without recourse. Part of the function of the Family Law Act is to address this inability at common law and provide for the statutory recovery of certain damages.

Section 61 of the Family Law Act[16] permits certain claims by the an injured person’s family members.  It allows for recovery of damages for out of pocket expenses as a result of an injury to a family member, funeral expenses, travel expenses, reimbursement for housekeeping or other caregiving, and an amount to compensate for loss of guidance, care and companionship.

In enacting section 61 of the Family Law Act, however, the Legislature chose not to provide standing by way of statute for claimants to bring negligence claims or claims for general damages otherwise. Such claims can only be brought at common law and are subject to the same duty of care analysis as all other actions in negligence.

Practical Implications

Many nervous shock claims will rise and fall on the duty of care analysis. The test for duty of care in these cases is long settled and, as a result, such claims may be appropriate for disposition at an early stage. The following considerations may be applicable in determining how to proceed when faced with a nervous shock claim following an accident or injury event that was brought by somebody who was not present for it:

  1. If the facts are straightforward, nervous shock claims may be appropriate for a summary disposition. The Court has shown that it is willing to dismiss some nervous shock claims for want of duty of care at an early stage in an action.
  2. Rule 21 is often more appropriate than Rule 20. The facts giving rise to an alleged duty of care must be pleaded in the Statement of Claim. Often, the duty of care analysis will turn on a discrete legal issue and will not require any further evidence. If this is the case, it may be better to move for dismissal under Rule 21 as opposed to Rule 20. Doing so avoids the possibility of evidence giving rise to a genuine issue for trial, the pitfalls of partial summary judgment (if applicable), and is often less expensive.
  3. Snowball v. ORNGE should be distinguished. If a Rule 20 or 21 motion is brought on the duty of care issue, a defendant should ensure that they distinguish their case from the Snowball.
  4. Beware of complicating facts. While some nervous shock claims will involve a straightforward analysis, others may give rise to factors requiring a trial. For example, the fact that the father searched for and found his son in the Norbord decision saved his claim and the fact that the daughter had called her mother following the accident in the Jones decision saved hers.

[1] See Saadati v Moorhead, 2017 SCC 28 [Saadati] at footnote of para. 1.

[2] [1978] AC 728 (HL).

[3] 2001 SCC 79 at paras 30–39, 41.

[4] Saadati, supra note 1 at para 36.

[5] Ibid at paras 16, 18–24.

[6] 2017 ONSC 4601 [Snowball].

[7] 2021 ONSC 5193 [Sigurdson].

[8] Ibid at paras 51–52.

[9] Ibid at para 56.

[10] 2021 ONSC 8031 [Jones].

[11] Ibid at paras 4–6.

[12] Ibid at para 25.

[13] 2019 ONSC 2370.

[14] 2019 ONSC 4900.

[15] 2022 BCSC 739.

[16] RSO 1990, c F 3.

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