A number of decisions relating to the negligent infliction of mental injury (known as “nervous shock” in older cases) are noted below, extracted from a recent 2023 decision.

The 2023 case (link at the end of the article) involved an application brought by the Defendants under Summary Trial to have the claim for “nervous shock” dismissed.  The basis of the argument was that the evidentiary record does not show sufficient proximity with the plaintiffs to find a duty of care.  Specifically, the defendants argue that the plaintiffs did not witness their daughter’s accident or its immediate aftermath.  The conclusion was that the case was dismissed as the Court stated this case could not be decided summarily.  The case identified a number of authorities dealing with negligent infliction of mental injury or “nervous shock” as it was once called, and they are enumerated below:

Negligent Infliction of Mental Injury

[30]      The leading Canadian authorities on the tort of negligent infliction of mental injury (sometimes referenced in older cases as “nervous shock”) are the Supreme Court of Canada’s judgments in Saadati v. Moorhead, 2017 SCC 28 and Mustapha v. Culligan of Canada, 2008 SCC 27.

[31]      They provide that the essential elements of this specific tort are fundamentally the same as those of traditional personal injury negligence claims. In order to succeed, the plaintiff must establish that: (1) the defendant owed a duty of care to the plaintiff to avoid the kind of loss alleged; (b) the defendant breached that duty by failing to observe the applicable standard of care; (c) the plaintiff sustained damage; and (d) that damage was caused, in fact and in law, by the defendant’s breach: Saadati at para. 13; and Mustapha at para. 3.

[32]      Furthermore, it is the ordinary duty of care analysis that applies since it is recognized that a duty exists to take reasonable care to avoid causing foreseeable mental injury: Saadati at para. 23. This includes consideration of the legal “proximity” between the parties.

[33]      At paras. 16 and 24 of Saadati, the Supreme Court of Canada noted also that there are authorities, inspired primarily by the judgment of the United Kingdom’s House of Lords in McLoughlin v. O’Brian, [1983] 1 A.C. 410, which limit the class of persons to whom a duty of care to not cause psychiatric harm is owed by reference to notions of “relational”, “locational”, and “temporal” proximity.  While these notions are still relevant, Saadati instructs that they should be applied flexibly and not formally:

[16]  Further obstacles to recovery for mental injury arose in English law. In McLoughlin v. O’Brian, at pp. 419-21, Lord Wilberforce posited three considerations that could limit the boundaries of compensable “nervous shock”: the class of persons whose claims should be recognized (often referred to as relational proximity), the proximity of such persons to the accident (locational, or geographical proximity), and the means by which the “shock” is caused (temporal proximity) (G. H. L. Fridman, The Law of Torts in Canada (3rd ed. 2010), at p. 326). …

…

[24]   It is also implicit in Mustapha that the ordinary duty of care analysis is to be applied to claims for negligently caused mental injury. With great respect to courts that have expressed contrary views, it is in my view unnecessary and indeed futile to re-structure that analysis so as to mandate formal, separate consideration of certain dimensions of proximity, as was done in McLoughlin v. O’Brian. Certainly, “temporal”, “geographic” and “relational” considerations might well inform the proximity analysis to be performed in some cases. But the proximity analysis as formulated by this Court is, and is intended to be, sufficiently flexible to capture all relevant circumstances that might in any given case go to seeking out the “close and direct” relationship which is the hallmark of the common law duty of care (Cooper v. Hobart, 2001 SCC 79, [2001] 3 S.C.R. 537, at para. 32, citing Donoghue v. Stevenson, 1932 CanLII 536 (FOREP), [1932] A.C. 562 (H.L.), at pp. 580-81).

[34]      British Columbia appellate authorities that provide content to the concepts of relational, locational, and temporal proximity include Rhodes Estate v. Canadian National Railway, 50 BCLR 273,1990 CanLII 5401 (BCCA) and Devji v. Burnaby (District of), 1999 BCCA 599.  In Rhodes, they were initially explained as follows:

[73] Accordingly, considerations of policy respecting the limits to be placed upon the right of recovery for psychiatric illness, when it is unaccompanied by conventional injury, must enter into the determination of the foreseeability issue. Thus, in my view, the issue is one of law for a judge to determine.

[74] The requisite proximity relationship is made up of a combination of various relational elements or factors. These include, inter alia, relational proximity (the closeness of the relationship between the claimant and the victim of the defendant’s conduct); locational proximity (being at the scene and observing the shocking event); temporal proximity (the relation between the time of the event and the onset of the psychiatric illness).

[35]      However, in Devji, the Court of Appeal clarified that locational proximity is not limited to just being at the scene of an accident but also extends to seeing its “immediate aftermath”, such as at the hospital immediately after the accident:

[67]   In this case, we are not required to express a view on the true nature of reasonable foreseeability because we are bound at least in part by Rhodes.  It clearly requires not merely foreseeability but also proximity and something more.  I have already said that I do not consider Rhodes to require that the alleged psychological injury have occurred at the scene of the accident.  In proper cases the aftermath of the accident may be extended to the hospital immediately after the casualty.

…

[76]   The nature of the experience by which an injury is alleged to have been suffered is one of the “controlling mechanisms” that serve to limit the reach of liability for nervous shock in this province.  It seems to me that the principle shock suffered by the plaintiffs was in learning of Yasmin’s death; after that, grief, sorrow and regret would follow immediately, and would continue for an unlimited period.  The experience of viewing the body, however, cannot be equated to the shock and horror that would be experienced, for example, at the scene of an accident witnessed by the plaintiffs because the features of surprise, shock, horror and even fear are absent in a hospital setting.  As already mentioned, it might have been different if Yasmin’s body had been horribly mutilated or if she had died in the presence of her family.  That was the case in Cox v. Fleming (1993), 13 C.C.L.T. (2d) 305 (B.C.S.C.) where the plaintiff succeeded.  That would be a different case and one that I need not attempt to decide.

[36]      More recently, Justice DeWitt-Van Oosten effectively noted in E.B. v. British Columbia, 2021 BCCA 47, that Devji and Rhodes remain good law in this province, at least until they are reconsidered by a five-member division of the Court of Appeal:

[60]      In Rhodes, a five‑member division of this Court held that liability for “nervous shock” experienced by the family members of an injured party is limited in its reach. “[D]amages for nervous shock cannot be recovered without exposure to a ‘shocking’ experience arising from exposure to the defendant’s negligence – rather than just to one of its consequences”: Devji at para. 40. To meet the proximity requirement, a claimant must establish that the mental injury suffered by them occurred at the “scene” of the tortious conduct that caused harm to the family member or in its immediate aftermath: Devji at para. 67. In “proper cases”, the immediate aftermath can include the “hospital immediately after the casualty”: Devji at para. 67.

…

[63]      I do not consider it necessary to decide whether the chambers judge wrongly considered himself bound by Rhodes Estate and Devji, on the basis that those cases have been overtaken by Saadati or otherwise. … [E]ven if Saadati does offer a possible basis on which to re‑visit and overrule this Court’s rulings in Rhodes Estate and Devji, the appellants did not seek a five‑member division for that purpose.

[37]      Finally, practical guidance for the application of the locational proximity factor when considering whether a duty of care is owed to a plaintiff who suffers mental injury can be drawn from the following authorities from the courts of British Columbia, Alberta, and Ontario that were brought to my attention by the parties:

                        (a) Bevan v. Husak, 2023 BCSC 304

[38]      The plaintiff was the mother of a teenager. The defendant was a man in his thirties who purported to be the father of the teenager’s friend at whose house the teenager slept over. This turned out not to be true, and the teenager later told her mother that she had sexual intercourse with the defendant while intoxicated. When the plaintiff came to pick up her daughter in the morning, she was missing from the house and the police were notified. The plaintiff sued the defendant for the mental injury she experienced from this event, particularly the shock of having her daughter go missing. The Court struck out the claim on a Rule 9-5 application for lack of temporal and locational proximity. Justice Betton wrote:

[57]      The authorities, including Devji, state that the plaintiff in a cause of action for nervous shock must witness the defendant’s conduct or its aftermath. That aftermath may include attending almost immediately at the hospital for the purpose of identifying the body of deceased relative. However, what falls within the scope of aftermath is limited. Sufficient temporal and locational proximity must be present. The harm to the plaintiff must be caused by the defendant’s conduct, rather than resulting from it.

[58]      The ANOCC effectively asserts that the plaintiff’s psychiatric response resulted from Husak’s alleged conduct as opposed to being caused by it. Devji makes it clear this cannot support this cause of action. There is insufficient proximity to establish a duty of care between the plaintiff and Mr. Husak. KB suffered emotionally and the plaintiff’s response was to that suffering. This circumstance is not akin to coming upon or seeing an accident caused by Husak in which KB was injured or its aftermath.

(b) Lavery v. Community Living British Columbia, 2022 BCSC 739

[39]      The plaintiff brought a claim for negligent infliction of mental distress against a not-for-profit society that was providing care to the plaintiff’s disabled daughter prior to her death. The claim was struck on a Rule 9-5 application as the Court felt it was bound to fail because of insufficient proximity. Justice Punnett wrote:

[87] Ms. Lavery claims for negligent infliction of mental distress. That requires a link between the alleged wrongful contact and the harm alleged. This tort is usually only found where a person witnesses a traumatic death or serious injury to a family member (Devji v. Burnaby (District), 1999 BCCA 599, para. 2; Mustapha v. Culligan of Canada Ltd., 2008 SCC 27).

…

[97]      The present state of the law in British Columbia is that the claim of Ms. Lavery arising from an extended course of alleged negligent conduct lacks the immediacy required to support a claim for psychological injury. Her claim for psychological injury is bound to fail and is therefore struck.

                        (c) E.B. v. British Columbia, 2021 BCCA 47; aff’g 2019 BCSC 2200

[40]      The plaintiff brought multiple claims against the Government of British Columbia, the Director of Child, Family and Community Services, and others arising out of a child apprehension and related protection proceeding, as well as the care received by the removed child while in the Director’s custody. They included a claim for damages for mental injury. It was struck by Justice Skolrood, then of this Court, because there was no allegation that the plaintiff had personally witnessed the harm or its immediate aftermath. The Court of Appeal affirmed the decision, as discussed above.

                        (d) Labrosse v. Jones, 2021 ONSC 8031

[41]      The plaintiff’s daughter was in a motor vehicle accident. She called the plaintiff from her car. The plaintiff alleged that she was effectively at the scene of the accident in its aftermath by means of a mobile telephone and, as a result, suffered psychological injuries caused by the defendant. While the plaintiff was unable to point to any decision in which the court had recognized a duty of care to a person who is an “auditory witness” to an accident by virtue of receiving a phone call, the Ontario Superior Court nevertheless dismissed the defendant’s summary judgment motion.  Justice MacLeod noted at para. 41 that “it is conceivable that a trial judge could find that the plaintiff falls within a class of individuals to whom the defendant owed a duty of care”.

(e) Snowball v. Ornge, 2017 ONSC 4601

[42]      The plaintiffs were family members of a paramedic who died in an air ambulance helicopter crash. The defendant operators of the air ambulance service brought a motion to strike out the claim on the basis that the plaintiffs did not witness the accident or its immediate aftermath. The motion was dismissed. Justice Faieta wrote:

[21] Given that courts have apparently disregarded Baker by allowing claims in negligence for mental injury so long as the claimant witnesses a person’s injury, death or the aftermath of such injury or death (see the cases described above at paragraph 16 of these reasons), and given that the court in Saadati rejected the “primary/secondary victim” distinction, as well as the view that there are geographic, temporal and relational proximity restrictions that are an absolute limitation on the duty to take reasonable care to avoid causing foreseeable mental injury, it is my view that the plaintiffs’ claims for mental distress following Snowball’s death might succeed even though they are secondary victims who did not witness this sudden, traumatic event.  As directed by the Supreme Court of Canada in Saadati, the outcome of the Snowball action should turn on the robust application of the elements of an action in negligence by the trier of fact rather than on the separate application of geographic, temporal, and relational considerations or a distinction between “primary” and “secondary” victims.

(f) Toukaev v. Insurance Corporation of British Columbia, 2011 BCCA 87

[43]      The plaintiff’s former wife was involved in a motor vehicle accident. He saw her in a “very bad state at hospital” some forty to fifty minutes after the accident, and brought a claim for nervous shock. The plaintiff’s claim was dismissed on a chambers application. The plaintiff appealed and sought indigent status. This required a single appellate judge to assess the merits of the appeal. Justice Hinkson, then of the Court of Appeal, found that the appeal had none, writing:

[22] Here, Mr. Toukaev learned of Ms. Toukaeva’s injuries before he saw her, and while her condition must have been upsetting to him when he saw her, it could not be said to have been unexpected.  As was the case for Yasmin Devji’s family, the Chambers Judge here concluded that a claim by Mr. Toukaev would not fall within the requirements of the law relating to the circumstances in which persons who are not physically injured are entitled to damages for nervous shock, and I conclude that that aspect of his appeal lacks the degree of merit necessary to justify a finding of indigent status.

 (g) Ulmer v. Weidmann, 2011 BCSC 130

[44]      The plaintiff attended at the scene of a motorcycle collision involving her husband. She saw him lying on the ground, bleeding and dying on the roadway, and undergoing treatment by paramedics. She later saw him in the hospital when he passed away. After a full trial, the plaintiff’s claim for nervous shock and other psychological and emotional injuries was allowed. Justice Truscott wrote:

[109]      It is obvious that Ms. Ulmer falls into that class of claimants whom Mr. Weidmann should reasonably have foreseen would be at risk of a psychiatric illness by reason of his negligent conduct and thereby to whom he owed a duty of care not to be negligent in his driving conduct.

[110]      Ms. Ulmer was the wife of the victim Mr. Ulmer, and she was at the scene very shortly after the accident occurred where she saw her husband lying on the roadway with blood pouring out of his mouth. Relational proximity, locational proximity and temporal proximity have all been established.

(h) Piper Estate v. Mitsubishi Heavy Industries Ltd., 2009 BCSC 1363

[45]      The plaintiff lost her husband in a plane crash. She sued the aircraft’s manufacturer for the mental injury she suffered from being exposed to images of the accident scene in the news media some days after she was informed of her husband’s death. Her claim was dismissed further to a summary trial application. Justice Pitfield wrote:

[7] The concepts of locational and temporal proximity refer to the requirement that the claimant must have actually observed the defendant’s conduct or the “immediate aftermath”.  Neither Rhodes nor later cases have defined the “immediate aftermath” with any degree of certainty. 

[10] Ms. Piper was not a witness to the accident.  She did not view her deceased husband’s body after the accident.  She was informed of the accident at her home.  She did not go to the scene.  She watched the depiction of the scene on television some time after she was informed of the accident and the death, and on other occasions in the five-day period following the accident.

[23] In the result, whether one applies the tests that have been set down by binding precedent in this province to conclude that the requisite degree of proximity by reference to time and location are lacking so that a claim should be denied notwithstanding that the harm was reasonably foreseeable, or one uses physical and locational proximity to assist in the assessment of whether an effect was reasonably foreseeable, any nervous shock Ms. Piper may have suffered is not actionable.  In the circumstances of this action, nervous shock was not reasonably foreseeable with the result that no duty of care to avoid the same can be imposed on the Mitsubishi defendants.  Ms. Piper’s claim in respect of nervous shock must be dismissed.

 (i) Devji (District of), 1999 BCCA 599; aff’g 1998 CanLII 1383 (BCSC);

[46]      The plaintiffs were the parents and sisters of a woman who had been killed in a motor vehicle accident. They brought a nervous shock claim for psychological injuries suffered at the hospital where they had been asked by the police to identify the body. The plaintiffs’ claim was dismissed further to a summary trial application.  Justice Burnyeat wrote:  

[31] Can it be said that the viewing of the body of Yasmin Devji at the hospital was part of the aftermath of the accident.  As it is clear that “grief, sorrow or reactive depression are not compensable” (per Wallace J.A. in Rhodes, supra), it must be found that the viewing of the body was part of the “aftermath”.  What constitutes “aftermath” has been described in a number of ways:

(a)”The period of immediate post-accident treatment” as found in the Jaensch and McLoughlin decisions;

(b) Where the deceased or the loved ones are “very much in the same condition” as they were immediately after the accident.  (Per Lord Jauncey in the Alcock decision.);

(c) Where the aftermath can be associated “with the accident itself.”  (Per Taylor J.A. in the Rhodes decision.); and

(d) Where the injured or deceased party “remained in the state produced by the accident up to and including post-accident treatment” as in the Jaensch decision.

[32] In reviewing the facts in this situation, I have come to the conclusion that the psychiatric illnesses of the plaintiffs cannot be said to have been caused by an incident which was part of the “aftermath” of the accident.  In reaching that conclusion, I also conclude that it was not reasonably foreseeable that the psychiatric injury would flow from the negligence of the defendants.  Rather, I am satisfied that the psychiatric illnesses of the plaintiffs came, in the words of Taylor, J.A. in the Rhodes decision, as an indirect consequence of the accident and were not a close and direct result of it.  I am satisfied that the condition of the plaintiffs arose because of the sorrow and grief that they experienced due to the death of Yasmin Devji and not because of the direct impact of the negligent conduct of the Corporation of the District of Burnaby.  What they experienced was the natural and profoundly deep grief that all parents and all siblings would experience if, after being advised of the death of a loved one, they were called upon to identify or view the body.

[47]      This judgment was affirmed by the Court of Appeal, as discussed above.

(j) Cox v. Fleming, 1995 CanLII 3127 (BCCA); aff’g [1993] B.C.J. No. 177 (SC)

[48]      The plaintiffs were the parents of an 18-year old who was critically injured in a motor vehicle accident and who later died in hospital.  After a full trial, damages were awarded to Mr. Cox for “nervous shock”.  The award was upheld on appeal.  The trial judge, Justice Ryan, wrote as follows:

After the accident an ambulance brought Jim Cox to the local hospital.  His parents and family were summoned there by someone from the hospital.  Mrs. Cox testified that on their arrival at the hospital, people were crying and there was a lot of confusion.  She fainted in the commotion but was soon permitted to see her son with her husband.  Jim Cox lay on a bed in emergency, unconscious.  An emergency room physician was working on him trying to assist him to breathe.  Mrs. Cox testified that there was a lot of blood under the boy’s head.  Her son’s face was not recognizable because his head was so terribly swollen.  A photograph taken after his death was entered as an exhibit at this trial.  It confirmed the evidence of Mrs. Cox.

The next day Jim Cox was flown to St. Paul’s in Vancouver.  Mr. and Mrs. Cox and the family followed.  Mrs. Cox said that the scene at St. Paul’s is a nightmare to her to this day.  She said that there were tubes in her son’s neck and mouth, that he was bandaged and that his head was absolutely enormous.  Shortly afterwards Jim Cox died.

..

I accept the evidence of Dr. O’Shaughnessy. Mr. Cox is not suffering from post-traumatic stress disorder. The sight of his child, so badly injured however, has had an impact on Mr. Cox. In Rhodes, Southin, J.A. identified this type of impact as an “emotional scar”. In finding this type of injury compensable, Southin, J.A. referred to her trial decision in McDermott v. Ramadanovic Estate (1988), 1988 CanLII 2840 (BC SC), 27 B.C.L.R. (2d) 45 where she awarded a 13 year old girl $20,000 for “the emotional scar of seeing…her parents killed before her eyes.”

In my view, the plaintiff has established that the horror of the aftermath of the accident in which his son was involved, caused a permanent impact on his mind, and that this injury was foreseeable within the meaning set out in the Rhodes case. In so finding, it goes without saying that I am satisfied too, that the scene at the hospital following so soon after the accident can properly be said to be a part of the “aftermath” of the accident. Mr. Cox suffered from the emotional scar of seeing his child badly deformed and dying in the aftermath of the motor vehicle accident.

(k) Talibi v. Seabrook, 1995 CanLII 9261 (ABQB)

[49]      The plaintiff was a medical doctor who brought a nervous shock claim against a driver who had struck and killed his 82-year old mother while she was crossing the street as a pedestrian. The plaintiff attended the hospital to view his mother’s body, noting that “blood had come from her ear, there were lacerations to her skull, her chest had been collapsed and her ankle was broken”. The claim was nevertheless dismissed by the Alberta Court of Queen’s Bench because of insufficient proximity, even though the trial judge accepted that the plaintiff fell within the class of person which is recognized as being compensable. Justice Murray wrote:

[23] I am not satisfied that the plaintiff’s injury was caused by the negligent conduct of Seabrook. There is no suggestion that at the time he viewed his mother in the hospital he was unexpectedly alarmed, startled or horrified nor were the circumstances which he came upon of an unexpectedly frightening nature. Dr. Talibi at that point in time did not enter a state of shock because of what he saw or heard when at the hospital nor did he act irrationally. Rather his concern was with making funeral arrangements and satisfying himself as to how the accident happened. He went so far as to attend at the accident scene and take measurements. It was only subsequently that the full impact of his mother’s death set in. I am satisfied that the plaintiff’s condition arose because of the sorrow, anxiety and grief he experienced due to his mother’s death and not because of what he saw or the impact of the negligent conduct of Seabrook upon his senses.

[24] As to the question of foreseeability Dr. Talibi falls squarely within the class of person which is recognized as being compensable. The situation at the hospital when Dr. Talibi arrived was not at all like that which the plaintiff experienced in the McLoughlin case. In that case what was seen was truly an integral part of the aftermath of the accident. In this case Dr. Talibi took a natural step of viewing his mother’s body. Some of her injuries were visible. However, in my view his proximity to the accident scene or its aftermath in either time or place was not sufficiently close such that the injury he experienced should have been foreseen by Seabrook. Nor, to use the terminology of Wallace J. A. in the Rhode [sic] case, was there locational or temporal proximity and thus the requisite relational proximity between Dr. Talibi and the negligent conduct of Seabrook.

(l) Rhodes Estate v. Canadian National Railway, 50 BCLR 273, 1990 CanLII 5401 (BCCA)

[50]       The plaintiff’s son was killed in an out of province train crash that she did not witness. Instead, she heard about the death from other persons and did not see her son’s body. The plaintiff brought a damages action against the railway for the psychiatric illness she subsequently experienced. The trial judge issued an interlocutory order permitting the plaintiff to advance her nervous shock claim before a jury. That order was quashed by a five-judge division of our Court of Appeal on the basis that the defendants did not owe the plaintiff a duty of care. Justice Wallace wrote in his reasons:

[78] In the present case, Mrs. Rhodes was not at the scene of the accident and did not observe the conduct of the defendants. She heard of the train crash on the radio, was uncertain for some period of time as to whether her son was indeed a victim of that crash. She did not arrive at the scene until some eight days after the accident. There were other post-accident incidents which regrettably contributed to Mrs. Rhodes’s distress but they were not acts attributable to the defendants. It is clear that the relationship between Mrs. Rhodes and her son was an exceptionally strong one, but this factor by itself is not, in my view, sufficient to establish the required proximity relationship necessary to conclude that Mrs. Rhodes’s psychiatric injury was a reasonably foreseeable, direct consequence of the defendants’ conduct. Accordingly, I do not consider in the circumstances that prevailed that the defendants were under a duty of care to Mrs. Rhodes to avoid causing the injury she sustained.

CONCLUSION OF CASE:

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