This  psychological injury car accident lawsuit ( Deros v. McCauley,2011 BCSC 195) was brought by a witness to a car accident.  The accident occurred on Highway 97, north of Bear Lake, B.C.  the claimant was part of a crew installing rumble strips on the highway. The injury claimant said that, as a result of witnessing the accident in which a vehicle struck a grinder unit being driven by his friend, he suffered emotional upset and post traumatic stress syndrome ( PTSD ). The claimants friend was not seriously injured in the motor vehicle accident.
The injury claimant said his prior emotional issues made him vulnerable to psychological injury,  a classic thin skull doctrine argument.  The court seems to have denied that argument outright not just on the evidence but on the law. As Judge Gerow stated at para 17,

“In order to show that the damage suffered is not too remote to be viewed as legally caused by Mr. McCauley’s negligence, Mr. Deros must show that it was foreseeable that a person of ordinary fortitude would suffer a mental injury from witnessing the accident. He has failed to do so.”

In effect the Judge appears not to apply the thin skull doctrine legal analysis to the facts of this case. As a personal injury lawyer making a psychological injury claim I succeeded in getting an award for a claimant  in a car accident where the claimant was not even witness to the accident or injuries.
In  that case Justice Clancy applied the B.C. Court of Appeal decision of  Devji v. District of Burnaby  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.
The Judge in Deros  dismissed the claim stating, “having failed to establish that a person of ordinary fortitude would suffer a mental injury from witnessing this accident, it follows that Mr. Deros’ claim must fail.” The Judge appears to have fallen short of stating that the thin skull doctrine does not apply to psychological injury claims. Although the result of this case may have been correct, the legal basis may well be criticized in future personal injury cases. Posted by Mr. Renn A. Holness
Issue: Should a witness to a car accident be entitled to compensation for emotional shock?


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