The claimant witnessed his wife get hit by a motorcycle as they jaywalked across Yates Street in Victoria.
Although not hit himself, the claimant suffered a severe emotional reaction. He therefore claimed compensation for the mental injury.
Nervous Shock : Legal Elements
“Psychiatric injury” is the favoured term over “nervous shock” (see 1999 decision of White v. Chief Constable of South Yorkshire Police,  1 All E.R. 1 (H.L.) .
In 2017 the Supreme Court of Canada endorsed an even more neutral term “mental injury” which now supersedes the term “Psychiatric injury”. Nervous shock is however still a useful term when used in researching and discussing the concomitant legal issues.
From the relevant cases ( see Ulmer v. Weidmann, 2011 BCSC 130 at paras. 97-99 ) the following elements for nervous shock have been established:
(a) the defendant must take reasonable care not to injure those persons who are so closely and directly affected by his/her actions that he/she ought reasonably to have them in contemplation as being so affected;
(b) proximity factors inform the foreseeability analysis for claims of psychiatric injury where there is no physical injury;
(c) the relevant proximity factors are the relational proximity (the closeness of the relationship between the claimant and the victim of the defendant’s conduct), locational proximity (being at the scene of a shocking event and observing it or observing its immediate aftermath), and temporal proximity (the relation between the time of the event and the onset of the psychiatric illness);
(d) the claim must be for actual psychiatric injury caused by the actionable conduct of the defendant;
(e) it must be concluded as a matter of law that a reasonable person should foresee that his/her conduct is such that for it could create a risk of direct psychiatric injury to a person of normal fortitude and thereby give rise to a duty of care to avoid such a result;
(f) a claimant must prove not just psychological disturbance or upset as a result of the defendant’s negligence but also that his/her psychological disturbance rises to the level of a recognizable psychiatric illness. Mere grief or sorrow caused by a person’s death is not sufficient to support any compensation. The law does not recognize upset, discord, anxiety, agitation or other mental states that fall short of a recognizable psychiatric illness.
Proximity and Foreseeability
The proximate cause for the husband’s injuries was found to be the negligence of the motorcycle driver. However, nervous shock in law imposes “control mechanisms” limiting liability.
 I agree with the plaintiff that these factors support the plaintiff’s claim. Mr. M’s relational proximity to Ms. M (her spouse) and his locational proximity (immediately beside the collision) are very close. The evidence has established that Mr. M was distraught in the immediate aftermath of the collision, and his psychological disturbances began soon after.(Marcena v. Thomson, 2019 BCSC 1287)
As to foreseeability, a defender is not liable for an unforeseeable consequence. However, it does not follow in law that there is liability for every foreseeable consequence.
The mental harm he suffered was a reasonably foreseeable outcome for a person of ordinary fortitude. The medical evidence also confirmed that the claimant suffered an actual psychiatric injury and was diagnosed with major depression.
“A reasonable person would have foreseen that striking a pedestrian with a motorcycle could cause traumatic psychological injury to a close family member who witnessed the accident.”
Valuing Claim for Nervous Shock
How much is a claim worth for nervous shock? This claimant husband was awarded $125,000 for pain and suffering arising for the nervous shock, before liability reduction*. His relationship with his wife was severely impacted. He was therefore less patient, more irritable, and struggled to communicate. Here are 4 cases that were referred to by the judge:
Khairati v. Prasad, 2002 BCSC 360- the 40-year-old plaintiff suffered mild to moderate soft tissue injuries, major depression, and somatoform pain disorder as the result of a motor vehicle accident. By the time of the trial, the plaintiff’s injuries were largely psychological, but remained chronic and disabling. She exhibited cognitive defects, lack of motivation, energy and ambition that impacted her personal and professional life. The court awarded $125,000 for pain and suffering which is over $168,000 in 2019 dollars.
Hans v. Volvo Truck North America Inc., 2018 BCCA 410- the 33-year-old plaintiff was diagnosed with PTSD and major depression after he and his wife were in a motor vehicle accident with no serious physical injuries. The plaintiff’s life was severely impacted by these psychological injuries, which were chronic, severe and disabling. As a result of his mental health injuries, the plaintiff attempted suicide three times. The trial judge found therefore that the accident’s impact on the plaintiff was “near catastrophic”, and awarded pain and suffering of $265,000.
Whatley v. Badshah, 1991 CarswellBC 1564 (S.C.) – the 55-year-old plaintiff was in a motor vehicle accident involving his fiancée and her brother. The plaintiff suffered some physical injuries which healed relatively quickly, but he experienced significant lasting psychological trauma. The accident led to diagnoses of PTSD, panic disorder, agoraphobia and depression. He also experienced suicidal ideation, panic attacks, anxiety, depression, poor concentration and memory. How much is my ICBC claim worth for nervous shock? As a result the court awarded him $125,000 for pain and suffering, which is equivalent to over $201,000 in 2019 dollars.
McCarthy v. Davies, 2014 BCSC 1498- the 47-year-old plaintiff suffered chronic pain, depression and anxiety after a motor vehicle accident. At the same time, the plaintiff’s personality changed dramatically and she became withdrawn, depressed and anxious. As a result the court awarded $100,000 for pain and suffering.
*Note that in the facts of this case the husband was found 75% liable for jaywalking. As a result the award of $125,000 for nervous shock was reduced by 75%. This however does not change the usefulness of this case for nervous shock assessment.
Tags: Nervous Shock