Claims for nervous shock – the negligent infliction of psychiatric damage.
As Ottawa injury lawyers, we know that advancing a claim for nervous shock can be difficult. The law of nervous shock, now referred to as the negligent infliction of psychiatric damage has existed since the late 1800s. The Supreme Court of Canada recently reviewed the test for nervous shock in the case of Mustapha v. Culligan in which the plaintiff claimed damages for nervous shock arising out of him witnessing a fly in a water container he was drinking. The court found that the seller of the water container owed the purchaser a duty of care, that the seller did breach a duty owed and that the purchaser was in fact injured. The court found that the purchaser did suffer from a genuine psychiatric illness. However, the court found that the nature of the psychiatric illness suffered by the purchaser was not reasonably foreseeable to the seller of the water container. The court held that the for psychological injury to compensable it must be more than psychological upset. The court wrote:
“This said, psychological disturbance that rises to the level of personal injury must be distinguished from psychological upset. The law does not recognize upset, disgust, anxiety, agitation or other mental states that fall short of injury. I would not purported to define compensable injury exhaustively, except to say that it must be serious and prolonged and rise above the ordinary annoyances, anxieties and fears that people living in society routinely, is sometimes reluctantly, accepted. The need to accept such upsets rather than seek redress in tort is what I take the Court of Appeal to be expressing in it’s quote from Vanek v. Great Atlantic and Pacific Co. of Canada: “life goes on”. Quite simply, minor or transient upsets do not constitute personal injury, and hence do not amount to damages [paraphrased].”
The court held that before damages for nervous shock can be compensable, the mental injury must be reasonably foreseeable in a person of ordinary fortitude. This position had been already expressed in the Ontario Court of Appeal decision of Vanek where, at page 25 the Court wrote:
In Canadian law, a plaintiff can recover for the negligent infliction of psychiatric damage if he or she establishes two propositions. First, that the psychiatric damage suffered was a foreseeable consequence of the negligent conduct; second, that the psychiatric damage was so serious that it results in a recognizable psychiatric illness.
The identifiable psychiatric illness must be more than simple emotional upset and a brief response to a tragic event. In order to establish a claim for negligent infliction of nervous shock, the injured person must first submit sufficient evidence of physical symptoms or a recognizable psychiatric illness which was caused by the traumatic event witnessed. The injured person must also demonstrate that the symptoms or illness are serious, prolonged and rise above the ordinary annoyances, anxieties and fears that people living in society routinely is sometimes reluctantly, accepted.
Therefore, the injured person will in most cases be required to lead expert evidence from a psychiatrist who can confirm that the injured person suffers from an identifiable psychiatric illness related to the traumatic event witnessed.
The law does not require that an injured person being physically present at the accident site to be compensated for nervous shock. However, the injured person must have first hand perception of the precipitating event or its immediate aftermath.
In conclusion, when pursuing a claim for nervous shock, the injured person must be prepared to call medical evidence that there is an identifiable psychiatric illness as opposed to a normal reaction. In most cases, expert evidence will be required. The injured person claiming psychiatric illness and nervous shock must be sufficiently close in relationship to the victim. It should be that the injured person witnessed the incident firsthand or came upon the aftermath close in time to the incident occurring. Finally, the reaction by the injured person should be one characteristic of a person of ordinary fortitude such that it can be said that the reaction to the incident was reasonably foreseeable.
If you believe you have suffered nervous shock, please contact one of our personal injury lawyers for a free consultation at 613-315-4878 or 613-563-1131.
QTMG Injury Lawyers