Personal injury cases often revolve around the issue of negligence and determining whether a defendant that caused harm breached the standard of care expected of them. In other words, did the defendant exercise the level of care that a reasonable person would have exercised in similar circumstances? This issue is often at the forefront of cases involving professional negligence and product liability. In those cases, a close relationship already exists between the plaintiff and defendant such that the defendant could have reasonably foreseen that their actions would harm the plaintiff. For example, a physician’s actions could possibly result in harm to their patient, and a food manufacturer’s error could harm a consumer.
So, what about cases in which a plaintiff suffers mental injury or grief, but is not involved in the actual accident? Or a family member who suffers depression upon learning of a loved one’s wrongful death caused by another person? In such instances, cases may turn on the issue of whether the defendant owed the plaintiff what is called a legal “duty of care.” Without such a duty, a defendant cannot be held liable for negligence.
The Legal Test for Negligence
To succeed in a negligence action, a plaintiff must generally prove that:
- the defendant owed the plaintiff a duty of care;
- the defendant’s actions breached the standard of care;
- the plaintiff suffered damage; and
- the damage was caused by the defendant’s actions or inactions.
What is a Duty of Care?
In order for a plaintiff to prove that a defendant has been negligent and should, therefore, be found liable, they must first establish that the defendant owed them a duty of care. This concept has its roots in the case of Donoghue v. Stevenson from the United Kingdom, which established what is known as the “neighbour principle.” This principles states that individuals “must take reasonable care to avoid acts or omissions which you can reasonably foresee would be likely to injure your neighbour.”
So, who is a neighbour? In the case of Rankin (Rankin’s Garage & Sales) v. J.J., the Supreme Court of Canada held that parties owe a duty of care “to those whom they ought reasonably to have in contemplation as being at risk when they act.” The rationale for this is that it would not be fair to impose liability where there was no reason for a defendant to have contemplated that their conduct could result in the harm claimed by a plaintiff. But how does a court decide whether a duty of care exists between two parties?
Recognizing When a Duty of Care is Owed
A duty of care arises when a relationship between the two parties is recognized by law and, because of the nature of the relationship, one party has a legal obligation towards the other. Certain relationships have historically been treated by the common law as giving rise to a legal duty of care, such as:
- doctors and patients;
- lawyers and clients; and
- drivers to other road users, including pedestrians.
The Anns/Cooper Test
In cases involving unique relationships that have not already been established as one in which a duty of care is owed, courts must analyze the relationship through what is better known as the Anns/Cooper test, originally derived from the case of Cooper v. Hobart. This test involves a two part analysis, the first part of which requires a court to determine:
- Whether the type of harm suffered by the plaintiff was a reasonably foreseeable consequence of the conduct of the defendant (the “foreseeability” element); and
- Whether the parties have a “close and direct” relationship between them so that it would be “just and fair” to impose a legal duty of care on the defendant (the “proximity” element).
When assessing the proximity element, a court will consider the “expectations, representations, reliance, and the property or other interests involved” between the parties.
If both foreseeability and proximity are found to exist, then a court must proceed to the second step of the test, which asks whether there are “residual policy concerns outside the parties’ relationship that should negate” a duty of care.
So, does a defendant generally owe a plaintiff who claims they suffered a mental or psychological injury as a result of the loss of a family member or witnessing an accident?
Claims for Nervous Shock Originally Viewed With Suspicion
Originally, the common law regarded claims for negligently caused mental harm with suspicion and did not allow such claims unless the mental injury was accompanied by some kind of physical harm. Historically, where a mental injury was claimed in relation to a sudden traumatic event, the law distinguished between claimants who were direct participants in the event and those who witnessed physical injuries caused to others. However, the landmark Supreme Court of Canada decision in Saadati v. Moorhead changed this legal landscape when the Court found that a legally compensable mental injury is not required to be supported by expert evidence in order to demonstrate that the injury is a medically recognized psychiatric injury.
Several cases have come before Ontario courts in recent years, the outcomes of which suggest that the Saadati v. Moorhead case has widened the net for plaintiffs claiming damages for mental injuries.
Claims for Grief and Nervous Shock Do Not Always Fail
In the case of Snowball v. Orgne, the immediate family members of a deceased paramedic sued the operator of an air ambulance helicopter that had crashed, which resulted in the paramedics death. The plaintiffs collectively sued for mental distress even though they had not been directly involved in, nor did they witness, the crash. The Ontario Superior Court of Justice noted that courts had historically refused to award damages for mental injury to a person who was merely told of an accident. However, the Court found that it was “not plain and obvious that the plaintiffs’ negligence action seeking damages for mental distress as a result of the death of Snowball has no reasonable prospect of success.” Ultimately, it would be up to a trial court to undertake a full analysis of the principles of negligence, including the duty of care, and apply it to the facts.
The recent case of Bustin v. Quaranto concerned a plaintiff’s claim for damages after witnessing a fatal motor vehicle collision caused by the defendant. The defendant brought a motion to strike the plaintiff’s Statement of Claim on the basis that the plaintiff did not have any relationship with anyone involved in the collision, nor did the plaintiff attempt to rescue anyone involved. According to the defendant, there was therefore no proximity and the claim should be dismissed. However, the Court refused to strike the claim, given previous decisions, noting that a trial would be needed to properly consider the duty of care.
Ontario Superior Court Bucks the Trend
However, in the 2021 decision of Sigurdson et al v. Norbord Inc. et al., the Ontario Superior Court reached a different result. That case involved a woodland supervisor who was required to go to remote logging sites during the course of his employment. After he went missing, the supervisor was found dead by his father who had gone looking for him. The deceased’s father was a plaintiff in the ensuing claim, together with the deceased supervisor’s wife and sister, who alleged they had suffered mental injuries as a result of the incident.
The Court undertook an Anns/Cooper analysis and acknowledged that courts had not historically recognized any duty of care owed to individuals simply because “they were the family member of someone who suffered harm as a result of negligence.” While the Court ultimately found a duty of care was owed to the father, the Court concluded that no such duty was owed to the deceased’s mother and sister. According to the Court, their claims failed with regard to both proximity and public policy analysis at the second stage of the Anns/Cooper test. The Court noted that allowing the negligence claims would expose defendants in such circumstances to “indeterminate liability.” Specifically, if an employer, such as the defendant in this case, 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.” The duty of care might then encompass extended family members or close personal friends, and the potential for liability would become “unwieldy.”
Contact the Litigation Lawyers at Campbell Litigation in Toronto for Effective Representation in Personal Injury Claims
The trusted personal injury lawyers at Campbell Litigation provide exceptional advice in relation to various personal injury claims, including claims for non-physical injuries, such as nervous shock and other psychological injuries. Our team has significant experience advising clients with effective and strategic legal representation. To speak with a member of our team about your personal injury claim, contact us online or call us at 519-886-1204.
