With the recent U.S. murder trial in the death of George Floyd, the public has had a direct view into the emotional difficulties faced by bystanders who witnessed the horrific scene. This was evident both from the audible pleas by bystanders during the encounter and the moving testimonies of witnesses who took the stand, made available to the general public and widely covered by news sources.

Bystanders or rescuers could face lost income and significant psychological fallout after having witnessed such a traumatic event. Can Canadian bystanders be compensated for nervous shock and other psychological injuries that they might suffer as a result of witnessing a traumatic incident? The answer is yes, but it can be complicated.

What is a Nervous Shock Claim?

In Ontario, "nervous shock" (psychological or mental injury) claims may be available to a bystander present at a traumatic event, usually resulting in serious or fatal injuries to the victim caused by a negligent act or wrongdoing. We typically see these claims where the bystander witnesses a serious accident and assists the victim, resulting in the victim's death or severe injuries. However, there are certain qualifying conditions for claims in nervous shock cases, and success can be difficult.

The psychological injury must be a foreseeable consequence of the negligent or wrongful act, and it must be serious enough to rise to the level of a known psychiatric illness. In other words, the mental injury must be serious and prolonged, and it must rise above the "ordinary annoyances" and "anxieties and fears that people living in society routinely accept". 1

In legal terms, a Plaintiff must meet the following test to succeed on a nervous shock claim:

  • There must be a duty of care owed to the Plaintiff by the wrongdoer (there is a duty to take reasonable care to avoid causing someone foreseeable mental injury); 2
  • The standard of care must be breached;
  • Damages must arise from the breach; and
  • The damages must be foreseeable, in other words not remote.

The Plaintiff does not have to be physically involved in the event or accident to have a claim. However, Ontario courts have articulated that where the bystander is a stranger to the victim, he or she should be a "proximate bystander" rather than a "mere bystander". A "proximate bystander" is one who, for example, also assisted the victim at the scene.3

Family members may have nervous shock claims where they have witnessed the victim's injuries as they occurred or in the immediate aftermath, such as arriving at the scene and witnessing the carnage. Still, the injury must be more than the emotional distress arising from the natural grieving process. 4

Nervous Shock Cases and Liability

Not all psychological disturbances are compensable under the law. A wrongdoer is liable only where the psychological injury is the kind that a person of "ordinary fortitude" (i.e. the average person) might suffer. A plaintiff who is exceptionally vulnerable to psychological disturbance may not be compensated. This was found to be the case in Mustapha v. Culligan of Canada, where the Plaintiff Mustapha noticed dead flies inside an unopened Culligan water bottle. Mr. Mustapha developed an obsession with that event because, in his mind, it meant "revolting implications" for his own health and that of his family who had been Culligan customers for well over a decade.  Mr. Mustapha went on to exhibit a major depressive disorder and associated impairments including anxiety. The Supreme Court of Canada held that unusual or extreme reactions (such as that by Mr. Mustapha) caused by negligence, while imaginable, are not reasonably foreseeable. 5

Is the Psychological Injury Foreseeable?

In another Ontario nervous shock case, an infant was sitting on her grandmother's knee in a parked car when another vehicle backed into the stationary vehicle, breaking a window. The Court of Appeal rejected the mother's claim for nervous shock that she claimed to suffer when she came out of a building, saw the scene, and thought her child was seriously injured. The Court found that the mother had a "particular hypersensitivity" that was "abnormal". Therefore, the psychological injury was not foreseeable. The infant plaintiff also claimed a mental disorder resulting from the accident, which was successful given that the infant was directly involved in the accident. 6

Compassionate Personal Injury Lawyers

At Gluckstein Lawyers, our commitment to full circle care always begins with a free initial consultation. If you have witnessed a death or serious accident resulting from negligence and believe you have a nervous shock case, please contact us for a no-charge, no-obligation legal consultation.

Footnotes

1 Mustapha v. Culligan of Canada Ltd., 2008 SCC 27 (CanLII), [2008] 2 SCR 114 at paragraph 9

2 Saadati v. Moorhead, 2017 SCC 28 (CanLII), [2017] 1 SCR 543

3 Bechard v. Haliburton Estate (C.A.), 1991 CanLII 7362 (ON CA)

4 Kardan v. Bartholdt, 1995 CanLII 1461 (ON CA)

5 Mustapha v. Culligan of Canada Ltd., 2008 SCC 27 (CanLII), [2008] 2 SCR 114 at paragraph 15

6 Duwyn et al. v. Kaprielian, 1978 CanLII 1271 (ON CA)

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.