A Vancouver mother was involved in a car accident just 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 mother was knocked unconscious and her daughter died three days later.
After the car accident, the mother recalled seeing a person on a stretcher on the ground beside the vehicle. 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 court was of the view that it was reasonably foreseeable that the negligence of the driver could cause psychiatric injury to the claimant. Generally, it is foreseeable that emotional or psychological injury will 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. Justice Clancy observed that denying compensation to the mother would lead to the unusual finding that by inflicting greater injury on a claimant, a defendant would limit his liability.
The court concluded that the aftermath of the accident must include learning of the accident after emerging from a period of unconsciousness especially where the claimant was herself injured in the accident. That would be as alarming, frightening, unexpected and horrifying as observing the accident.
The court 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.
Justice Clancy also referred to Devji in stating that the term “nervous shock” has been largely abandoned in favour of “psychiatric injury”.
The injury claimant 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
