Béchard v. Haliburton (succession) (1991), 5 O.R. (3d) 512 (C.A.)

  • Document:
  • Date: 2018

Bechard and Bechard v. Haliburton, administrator of Haliburton Estate and Damsgard; Bechard, third party

Indexed as: Bechard v. Haliburton Estate (C.A.)

5 O.R. (3d) 512

[1991] O.J. No. 1969

Action No. 429/88

ONTARIO

Court of Appeal for Ontario

Houlden, Griffiths and Carthy JJ.A.

November 8, 1991

Torts — Negligence — Duty of care — Scope — Nervous shock

— Driver of second motor vehicle who negligently runs over victim of first accident owes duty of care to passenger- bystander who witnesses fatality — Plaintiff who suffers from unusual susceptibility is entitled to recover damages for more extensive mental illness.

The plaintiff is a passenger who was injured in a collision between a motor vehicle and a motorcycle. While her spouse and a bystander were attempting to assist the motorcyclist, who had been thrown into the middle of the road, a second vehicle driven by the defendant D struck and killed the motorcyclist.

The cyclist’s estate admitted liability for the first collision, and the trial judge found the defendant D liable for the second accident. In addition to physical injuries, the plaintiff suffered a severe psychiatric illness known as “post- traumatic stress reaction” or “post-traumatic neurosis”. The issue on appeal is whether the plaintiff is entitled to recover damages for nervous shock caused when she witnessed the second accident.

Held, the appeal should be dismissed.

The plaintiff’s right to recover damages depended on whether her nervous shock was reasonably foreseeable by the defendant D in all the circumstances. It is settled law that a rescuer who witnesses a horrible accident is entitled to recover and there is no reason why that right should not be extended in circumstances where the plaintiff was performing a role similar to that of the rescuer. The shock plaintiff suffered was foreseeable to an average person and she is entitled to recover damages for more extensive mental illness due to her unusual susceptibility. The two defendants each contributed to the nervous shock damages and are responsible, proportionately, on a 75/25 basis.

Cases referred to

Chadwick v. British Transport Commission (or British Railways Board), [1967] 2 All E.R. 945, [1967] 1 W.L.R. 912, 111 Sol. Jo. 562 (Q.B.); Dooley v. Cammell Laird & Co. Ltd., [1951] 1 Lloyd’s Rep. 271 (K.B.); Duwyn v. Kaprielian (1978), 22 O.R. (2d) 736, 7 C.C.L.T. 121, 94 D.L.R. (3d) 424 (C.A.); McLoughlin v. O’Brian, [1982] 2 All E.R. 298, [1982] 2 W.L.R. 982, [1982] R.T.R. 209 (H.L.); Mount Isa Mines Ltd. v. Pusey, (1971), 45 A.L.J.R. 88 (Aust. H.C.). APPEAL from a judgment of White J., June 2, 1988, awarding $50,000 in general damages for nervous shock arising from a motor vehicle accident.

Peter Webb, Q.C., for Ben Z. Damsgard, appellant. Samuel A. Mossman, for Dolores Bechard and William V.

Bechard, respondents.

Robert E. Barnes, Q.C., for Robert Alexander Haliburton, administrator of Charles C. Haliburton Estate, respondent.

The judgment of the court was delivered by GRIFFITHS J.A.:– The central issue in this appeal is whether the plaintiff, Dolores Bechard, is entitled to recover damages for nervous shock caused when she witnessed an accident involving a stranger who was negligently struck and run over by an automobile owned and driven by the defendant Ben Z. Damsgard. The trial judge, Mr. Justice White, by judgment dated June 2, 1988 held that Dolores Bechard was, in the circumstances of this case, entitled to recover such damages. From that judgment the defendant Damsgard appeals.

The facts

On October 9, 1982, at approximately 10:45 p.m., the plaintiff William V. Bechard was driving his automobile in a westerly direction on County Road No. 2, a rural road in the county of Windsor, with his wife Dolores Bechard a passenger in the right front seat. As the Bechard vehicle entered the intersection of Concession Road No. 4, the late Charles C. Haliburton, operating his motorcycle in a southerly direction on No. 4, failed to stop at a stop sign and drove into the intersection, colliding heavily with the right front side of the Bechard automobile. Dolores Bechard observed the lights of the motorcycle approaching, saw the collision and saw Haliburton and his motorcycle thrown into the air. Haliburton was thrown against the windshield of the Bechard car and his body came to rest approximately in the middle of the travelled portion of County Road No. 2, 19.5 metres west of the point of impact. After the impact the Bechard vehicle travelled westerly, coming to rest facing in a northwesterly direction on the south shoulder of County Road No. 2, approximately 40 metres west of the point of impact. The headlights of the Bechard vehicle were left on. A Mr. Daniel MacLeod was a passenger in an automobile proceeding westerly behind the Bechard vehicle. MacLeod saw the collision between Bechard and Haliburton and his driver stopped his automobile at a point about 200 feet east of the intersection where he left the vehicle with its four-way flashers on. William Bechard and Daniel MacLeod got out of their respective motor vehicles and went to the aid of Haliburton, who was alive but injured, still lying in the middle of the road. Haliburton told them he did not want to be moved.

Dolores Bechard was injured in the collision with Haliburton, suffering significant injuries to her neck and shoulder. She was in severe pain immediately following the accident. She took several minutes to remove her seat belt and get out of her vehicle. She then stood beside her vehicle, crying and somewhat hysterical, with her husband and MacLeod attempting to comfort her.

The defendant Ben Z. Damsgard then came upon the scene driving his automobile in an easterly direction on County Road No. 2. When MacLeod saw the lights of the Damsgard vehicle approaching he left Dolores Bechard, ran forward and waved at the approaching car. Dolores Bechard saw the Damsgard vehicle when it was some distance away. She screamed and waved her arms in an effort to stop the Damsgard vehicle in its progress towards the body of Haliburton still lying on the road. The trial judge in his reasons described what followed:

Mrs. Bechard was unable, by her waving, to impede the movement of the Damsgard vehicle. She saw the Damsgard vehicle approach the place on the highway where her husband was. He was near Chris (Haliburton), and she saw the danger to her husband, and she saw the event, the second event, which gives rise to this action, namely, the Damsgard vehicle running over the helpless person of Chris Haliburton. She heard two bumps. Notwithstanding her screaming, the driver of the Damsgard vehicle paid no heed. She saw Chris Haliburton run over. She saw his body moved.

As a result of being run over by the Damsgard vehicle, Haliburton was killed.

Dolores Bechard was stricken at the sight of Haliburton’s body being struck and run over. She suffered amnesia following the accident. She was eventually removed from the scene by ambulance and taken to hospital.

After he had run over and killed Haliburton, Damsgard did not stop at the scene. He was chased and caught by MacLeod and then returned to the scene of the accident. When interviewed by the police Damsgard first stated that his wife had been driving. He acknowledged having had “a couple of beers” prior to the accident but refused to take a breathalyzer test requested by the police.

The findings of negligence

At trial the estate of Haliburton admitted liability for the first collision between the motorcycle and the Bechard car and any resulting damages to Dolores Bechard. The trial judge found the defendant Damsgard negligent in the operation of his automobile in failing to keep a proper look-out as he approached the scene. Damsgard should have been alerted by the presence of the Bechard vehicle with its headlights on, and by the close proximity of the MacLeod vehicle with its headlights and flashers going. The trial judge also found that these warnings should have alerted Damsgard to the likely presence of people involved in the accident being in the immediate vicinity of the Bechard vehicle. No issue was taken on this appeal with respect to this finding of negligence.

Damsgard took third party proceedings against William Bechard alleging that his negligence contributed to the second accident, in failing to turn the flashing lights of his motor vehicle on, in leaving the headlights of his motor vehicle on, and in not putting out flares or taking steps to warn Damsgard of the position of his vehicle on the road. The trial judge rejected these allegations, finding no negligence on the part of William V. Bechard and dismissing the third party proceedings. No appeal has been taken from that disposition.

 

The damages of Dolores Bechard

With respect to the damages suffered by Dolores Bechard, the trial judge found that she sustained a serious neck injury from the first collision which was still causing her significant pain and disability at the time of the trial. As well, he found that the two collisions had caused a severe psychiatric illness to her, a condition known as “post-traumatic stress reaction” or “post-traumatic neurosis”.

Dolores Bechard was 48 years of age at the time of the accident. She had been married 31 years to William Bechard and had two adult children born of the marriage. She had not been employed outside of her household for some 15 or 20 years.

The trial judge recognized that Dolores Bechard had a long pre-accident history of anxiety, depression and of multiple physical complaints. He concluded, however:

… notwithstanding her condition of reasonably constant anxiety which preceded the accident, and a multiplicity of symptoms, some of which may have to do with the strong possibility that she had a mild form of multiple sclerosis, it appears to me that the anxieties and depression, and let us say neurosis component of her pre-accident condition, was of a considerably different genus than that which followed the two events of the accident in which her husband’s car had been struck and she had been physically injured, and her seeing the violence of Chris being run over. The development of this stress condition, the significant features of which are phobia in driving cars — she no longer drives in a car beyond, I believe, Chatham out of Windsor; she takes buses and trains — her sleeplessness, which is worse, considerably worse than it was before the accidents, and her constant reliving, several times a day, the picture of this violent scene in which Chris was run over coming back to her; those and the other components of the syndrome as described by Dr. Margulies and various other psychiatrists whose reports are before the court, are new; they had not been present pre- accident.

I am prepared to accept the testimony of Dr. Margulies that this condition is permanent. This is a condition for which she needs psychiatric care.

The trial judge accepted the medical opinion of Dr. A.I. Margulies, a psychiatrist called by the estate of Haliburton, that the stress reaction and psychiatric illness suffered by Dolores Bechard was related to the two accidents in the sense that the first accident, involving the motorcycle, represented “the cocking of a gun” and the second accident when Dolores Bechard saw Damsgard run over the body of Haliburton and saw the body roll out from beneath the Damsgard vehicle represented “the pulling of the trigger of the gun”.

Findings as to causation

The trial judge found that both collisions had contributed to the psychiatric condition of Dolores Bechard, that is, to her condition of nervous shock. He said:

So looking at the matter, I am prepared to accept the testimony of Dr. Margulies that medically the causation of her stress reaction is related to the two events having occurred, one after the other in short succession; that without either she would not have had the misfortune to have the particular stress reaction which she has now; and that insofar as medical causation can be put into numbers, that the stress reaction she has is related 75 per cent to her seeing Chris run over, to witnessing that event in the situation in which she did, and 25 per cent to her having been injured in the first accident.

The liability of Damsgard for the nervous shock damages

Although the trial judge found that both accidents had caused the nervous shock, there still remained the issue of whether Damsgard owed a duty of care to Dolores Bechard as to render him liable for nervous shock suffered by her as a bystander witnessing an accident to a stranger.

The trial judge, after reviewing the legal authorities, concluded that the test of liability is “foreseeability of risk to the person who suffers nervous shock”, and that a bystander who suffers nervous shock, with no relationship to the injured party, may in the circumstances of this case be a foreseeable risk.

In arriving at this conclusion, the trial judge emphasized that Dolores Bechard was within the range of harm and that she was waving at the Damsgard vehicle to protect the other victim of the accident, Haliburton. He concluded that she and Haliburton were in common “victims of the same accident and she, as a reasonable person, had a sufficient proximity by virtue of that to be concerned to protect him as she tried to do”. He said:

That takes her out of the category of mere bystander and puts her into the category of a proximate bystander, a bystander who has a sufficient legal relationship to the victim of the shocking event to impose a duty of care in relation to her on the tortfeasor responsible in law for the shocking event.

Furthermore, on a less elaborate analysis, she herself should have been seen waving by Mr. Damsgard; she herself had to jump out of the way of his motor vehicle to protect her own life and limb. She was within the ambit of physical risk as was discussed by Lord Atkin, in Hay (or Bourhill) v. Young, supra. So I find that there was a duty of care by Mr. Damsgard to her; that her presence was foreseeable, and her presence should have been seen; indeed, that the presence of Mr. MacLeod and her husband was foreseeable and should have been seen; and that the development of a psychiatric condition such as she unfortunately developed was foreseeable to a reasonably prudent person, both in Mr. Damsgard’s position and in the late Chris Haliburton’s position. So I find that liability is imposed on both defendants in this matter in respect of the damages consequent upon the stress reaction. The trial judge assessed the damages for the physical injuries sustained by Dolores Bechard in the first accident at $25,000 for which the estate of Haliburton was alone responsible. The trial judge assessed additional damages of $50,000 for her post-traumatic stress reaction arising out of both accidents. He held the estate of Haliburton liable for the damages of $50,000 but permitted Haliburton to recover 75 per cent from Damsgard, reflecting his earlier finding that their respective contributions to this stress reaction was 75-25. In the net result, judgment was awarded against Haliburton for $25,000 plus $12,500 or a total of $37,500, plus pre-judgment interest and against Damsgard for $37,500 together with pre- judgment interest. Haliburton and Damsgard were held liable each for one-half of Dolores Bechard’s costs.

The grounds of appeal

Counsel for Damsgard argued three grounds of appeal, namely:

  1. the trial judge erred in holding Damsgard liable for damages for nervous shock in that:

  1. Dolores Bechard’s relationship to the victim Haliburton was too ill-defined and remote to include her amongst those whom one would reasonably expect to suffer a serious emotional reaction. While the courts have recognized family relationships as sufficiently close to establish a foreseeable psychological reaction, the relationship to a mere bystander was not sufficient.

  1. Dolores Bechard had suffered from acute anxiety for which she had been receiving medical treatment for many years before the accident. Her pre-accident condition predisposed her to react abnormally and in a manner not reasonably foreseeable to the circumstances of this accident.

  1. The trial judge found that each accident had caused the condition of nervous shock for which Dolores Bechard was awarded $50,000, on a ratio of 75-25. Although the trial judge found that the negligence of Haliburton continued up to the second accident, he erred in failing to further assess the respective degrees of negligence of Haliburton and Damsgard and, had he done so, this would have resulted in Damsgard being liable for less than the $37,500 assessed against him.

  1. The damages of $50,000 awarded to Dolores Bechard under the heading of emotional stress were excessive. We declined to interfere with the trial judge’s assessment of $50,000 general damages. We called upon counsel for the respondents to respond to the first two submissions only. Is the existence of a blood relationship between the plaintiff and the physically injured victim a prerequisite for establishing a claim for nervous shock? In my view the trial judge was on solid ground in concluding that under Canadian and English law reasonable foresight of nervous shock to the plaintiff is the touchstone of liability. Counsel for Damsgard submits that the authorities do not recognize as “foreseeable” emotional injuries to a mere bystander unrelated to the victim, such as Dolores Bechard.

This court has clearly affirmed that liability for nervous shock depend primarily on foreseeability. In Duwyn v. Kaprielian (1978), 22 O.R. (2d) 736, 94 D.L.R. (3d) 424 (C.A.), the defendant negligently backed into a parked car, denting it, breaking the window and scattering glass throughout the interior. The infant plaintiff, a four-month-old child, was sitting on her grandmother’s knee in the front seat of the parked car at the time. When the child’s mother came out of a building she saw people gathered around the car and heard her four-month-old child screaming. Thinking her child had been injured, the mother became hysterical. The child developed a severe emotional condition and she and the mother claimed damages for nervous shock each had sustained. The trial judge held that both claims were too remote and not recoverable. On appeal, this court agreed with the trial judge with respect to the injuries suffered by the mother but allowed the appeal brought by the child, and awarded her $25,000. This court reasoned that the child’s claim was not outside the grounds of foreseeability. Although the child’s mental disorder as it appeared on the evidence was due to the ineffectiveness of the parents in caring for the child, that ineffectiveness was held to not be “an effective intervening cause in law”. The claim of the mother was dismissed as “unforeseeable” because the condition of emotional upset of which she complained “was caused by the constant obligation of having to cope with (her child) and not by the initial upset which she underwent immediately following the accident”. Morden J.A. said at p. 747 O.R., p. 435 D.L.R.:

I accept the principle applied by the trial Judge that the test of liability for nervous shock is the foreseeability of nervous shock. This puts the law of negligence concerned with this kind of claim, at least according to its verbal formulation, into line with general negligence law. In Overseas Tankship (U.K.) Ltd. v. Morts Dock & Engineering Co. Ltd., [1961] A.C. 388 (The Wagon Mound, No. 1), Viscount Simonds said, at p. 426: As Denning L.J. said in King v. Phillips, [1953] 1 Q.B.

429, 441: “there can be no doubt since Bourhill v. Young that the test of liability for shock is foreseeability of injury by shock.” Their Lordships substitute the word “fire” for “shock” and endorse this statement of the law.

And at p. 749 O.R., p. 437 D.L.R.:

Obviously there is a significant element of experience and value judgment in the ultimate application of the foresight requirement. As far as experience is concerned, much depends on the assumed general awareness respecting the susceptibility of people to psychic injury through traumatic shock. In this connection Professor Williams has observed:

The question then is what can the reasonable or average man foresee? It is submitted that, with the increasing general knowledge of the average Canadian, and especially with his current awareness of mental reactions to various stimuli, a reasonable man would foresee the risk of psychic damage in many situations in which he would not have foreseen it even five years ago. Since our state of knowledge is constantly broadening the scope of the duty of care must expand accordingly. See “Tort Liability for Nervous Shock in Canada” in Linden, Studies in Canadian Tort Law (1968), 139 at p. 150.

The most recent decision of the House of Lords on liability for nervous shock is McLoughlin v. O’Brian, [1982] 2 All E.R. 298, [1982] 2 W.L.R. 982. The plaintiff mother was at home when she was told that her family had been involved in a car accident. She went to hospital and learned that, as a result of an accident caused by the negligence of the defendant, her youngest daughter was dead, her elder daughter and son in pitiable condition and her husband dazed. She sued the defendants for the nervous shock she suffered as a result. The Court of Appeal rejected her claim on policy grounds, although the court admitted there was foreseeability of shock to her.

The House of Lords reversed this decision, having considered the policy arguments against liability and rejecting their application to the circumstances of that case.

The “policy grounds” that have concerned the courts in these cases is that there should not be unlimited liability to persons who suffer nervous shock. The perceived danger is that every accident may generate an ever-widening circle of plaintiffs including, possibly, the casual passer-by who witnesses the accident and those who come to gaze at the scene later, as well as the relatives of all of those to whom the details will be recounted.

In McLoughlin the House of Lords unanimously reasoned that justice is not served by withholding recovery from the mother who, immediately after an accident involving her child, comes upon the scene of destruction and suffers shock, but awarding damages to the mother who witnesses her child’s injury.

Lord Wilberforce and Lord Edmund-Davies agreed with the Court of Appeal that the defendant’s liability for nervous shock must be limited to a certain class, but ruled that the limits must not be arbitrarily set. Lord Wilberforce described the present state of English law at pp. 301-02 All E.R.:

Although in the only case which has reached this House (Hay (or Bourhill) v. Young [1942] 2 All ER 396, [1943] AC 92) a claim for damages in respect of “nervous shock” was rejected on its facts, the House gave clear recognition to the legitimacy, in principle, of claims of that character. As the result of that and other cases, assuming that they are accepted as correct, the following position has been reached:

    1. While damages cannot, at common law, be awarded for grief and sorrow, a claim for damages for “nervous shock” caused by negligence can be made without the necessity of showing direct impact or fear of immediate personal injuries for oneself. The reservation made by Kennedy J in Dulieu v White & Sons [1901] 2 KB 669, [1900-3] All ER Rep 353, though taken up by Sargant LJ in Hambrook v Stokes Bros [1925] 1 KB 141, [1924] All ER Rep 110, has not gained acceptance, and although the respondents, in the courts below, reserved their right to revive it, they did not do so in argument. I think that it is now too late to do so. The arguments on this issue were fully and admirably stated by the Supreme Court of California in Dillon v Legg (1968), [68 C 2d 728].

    1. A plaintiff may recover damages for “nervous shock” brought on by injury caused not to him or herself but to a near relative, or by the fear of such injury. So far (subject to 5 below), the cases do not extend beyond the spouse or children of the plaintiff (Hambrook v Stokes Bros [1925] 1 KB 141, [1924] All ER Rep 110, Boardman v Sanderson [1964] 1 WLR 1317, Hinz v Berry [1970] 1 All ER 1074, [1970] 2 QB 40, including foster children (where liability was assumed), and see King v Phillips [1953] 1 All ER 617, [1953] 1 QB 429).

    1. Subject to the next paragraph, there is no English case in which a plaintiff has been able to recover nervous shock damages where the injury to the near relative occurred out of sight and earshot of the plaintiff. In Hambrook v Stokes Bros an express distinction was made between shock caused by what the mother saw with her own eyes and what she might have been told by bystanders, liability being excluded in the latter case.

    1. An exception from, or I would prefer to call it an extension of, the latter case has been made where the plaintiff does not see or hear the incident but comes on its immediate aftermath. In Boardman v Sanderson the father was within earshot of the accident to his child and likely to come on the scene; he did so and suffered damage from what he then saw. In Marshall v Lionel Enterprises (1971) 25 DLR (3d) 141 the wife came immediately on the badly injured body of her husband. And in Benson v Lee [1972] VR 879 a situation existed with some similarity to the present case. The mother was in her home 100 yards away, and, on communication by a third party, ran out to the scene of the accident and there suffered shock. Your Lordships have to decide whether or not to validate these extensions.

    1. A remedy on account of nervous shock has been given to a man who came on a serious accident involving people immediately thereafter and acted as a rescuer of those involved (Chadwick v British Transport Commission [1967] 2 All ER 945, [1967] 1 WLR 912). “Shock” was caused neither by fear for himself nor by fear or horror on account of a near relative. The principle of “rescuer” cases was not challenged by the respondents and ought, in my opinion, to be accepted. But we have to consider whether, and how far, it can be applied to such cases as the present. And later at p. 303 All E.R.: This is saying that foreseeability must be accompanied and limited by the law’s judgment as to persons who ought, according to its standards of value or justice, to have been in contemplation. Foreseeability, which involves a hypothetical person, looking with hindsight at an event which has occurred, is a formula adopted by English law, not merely for defining, but also for limiting the persons to whom duty may be owed, and the consequences for which an actor may be held responsible. It is not merely an issue of fact to be left to be found as such. When it is said to result in a duty of care being owed to a person or a class, the statement that there is a “duty of care” denotes a conclusion into the forming of which considerations of policy have entered. That foreseeability does not of itself, and automatically, lead to a duty of care is, I think, clear. I gave some examples in Anns v Merton London Borough [1977] 2 All ER 492 at 498, [1978] AC 728 at 752, Anns itself being one. I may add what Lord Reid said in McKew v Holland & Hannen & Cubitts (Scotland) Ltd [1969] 3 All ER 1621 at 1623: “A defender is not liable for a consequence of a kind which is not foreseeable. But it does not follow that he is liable for every consequence which a reasonable man could foresee.”

Lord Bridge in his reasons appears to have rejected any rigid lines designed to keep liability for nervous shock within bounds and adopts the test of reasonable foreseeability for shock claims as for any other claims for damages in negligence cases. Lord Russell adopted the test of reasonable foreseeability and did not go further to indicate how that test should be applied.

Lord Scarman expressly rejected the placing of any limits on recovery on grounds of policy if the nervous shock was foreseeable. He said at p. 310 All E.R.:

The distinguishing feature of the common law is this judicial development and formulation of principle. Policy considerations will have to be weighed; but the objective of the judges is the formulation of principle. And, if principle inexorably requires a decision which entails a degree of policy risk, the court’s function is to adjudicate according to principle, leaving policy curtailment to the judgment of Parliament. Here lies the true role of the two law-making institutions in our constitution. By concentrating on principle the judges can keep the common law alive, flexible and consistent, and can keep the legal system clear of policy problems which neither they, nor the forensic process which it is their duty to operate, are equipped to resolve. If principle leads to results which are thought to be socially unacceptable, Parliament can legislate to draw a line or map out a new path.

While all of the law lords place the right to recovery on the basis of foreseeability, the majority held that matters of policy and the factual proximity had to be weighed by the court in addition to foreseeability of nervous shock. On the matter of policy Lord Wilberforce held that a “rescuer”, that is, a person whom one could expect to come immediately to the scene, should be regarded as within the scope of foresight and duty. In that respect, he cited with approval the decision of Chadwick v. British Transport Commission (or British Railways Board), [1967] 2 All E.R. 945, [1967] 1 W.L.R. 912 (Q.B.).

In the Chadwick case the plaintiff’s husband acted as a volunteer rescue worker at the scene of a major rail disaster. As a result of the horror of his experiences in rescuing severely injured passengers, he became ill with an anxiety neurosis. The trial judge, Waller J., found in favour of the plaintiff and awarded damages for the neurosis, holding that the rescue and the shock were reasonably foreseeable by the negligent defendant who had caused the disaster. At pp. 950-51 All E.R. he said:

I do not see any objection in principle to damages being recoverable for shock caused other than by fear for one’s own safety or for the safety of one’s children. One only too frequently comes across the case of a man with a trivial industrial injury which subsequently produces genuine neurotic symptoms not due to fear but due to other causes. It would seem anomalous if serious mental illness accompanied by a trivial injury would entitle a man to compensation but if there were no trivial injury it would not. I should also mention the case of Owens v. Liverpool Corpn., which was a case where the plaintiff recovered damages for shock not due to fear for personal safety or for the safety of children.

There is nothing in this decision which is inconsistent with the view, which I have expressed, and although some disapproval of the decision was expressed by some of their lordships in Hay (or Bourhill) v. Young, in my opinion there is nothing in this disapproval inconsistent with the view that I have formed. In my opinion, therefore, provided that the necessary requisites of liability are there, shock, other than fear for oneself or children, causing injury, may be the subject of a claim for damages.

(Emphasis added; footnotes omitted)

In substance, then, Waller J. held that the proposition that the plaintiff should only recover where the shock emanates from fear for one’s own personal safety or for the safety of a close relative was neither dictated by authority nor sound in principle. Not cited in the Chadwick case, an earlier decision, Dooley v. Cammell Laird & Co. Ltd., [1951] 1 Lloyd’s Rep. 271 (Q.B.), came to a similar decision. In that case, the defendant’s negligence led to the breaking of the rope of a crane so that its load fell into the hold of a ship in which men were working. The plaintiff was the driver of the crane and was himself in no personal danger and, in fact, none of the workers were injured. However, the crane operator suffered nervous shock from witnessing the danger to the men in the hold. Donovan J. held that he was entitled to succeed because his nervous shock in the circumstances was clearly foreseeable.

In Australia the courts have also extended the right of recovery to persons who have suffered nervous shock as a result of observing injury to non-relatives. In Mount Isa Mines Ltd.

v. Pusey, (1971), 45 A.L.J.R. 88 (Aust. H.C.), the plaintiff workman heard a loud noise resulting from an electrical short circuit. He hurried to the floor above and helped one of two electricians who had been horribly burned in the accident, one of whom died the next day. As a result of observing the injuries to these workmen the plaintiff developed symptoms of schizophrenia and brought an action against the employer whose negligence, as well as the negligence of its employees, had caused the two workmen to be burned.

Windeyer J., after a thorough analysis of the authorities, concluded that liability for nervous shock depended on foreseeability of that harm. At pp. 95-96 A.L.J.R. he said:

Courts have come — slowly, cautious step by cautious step

— to give damages for mental disorders resulting from a man’s seeing another person hurt, without himself having suffered physical injury or been in any peril of physical harm. A mother, or other near relative, who actually sees a child or other loved one hurt or killed or in imminent danger of being hurt or killed may suffer in mind, and sometimes indirectly in body, as the result of the shock. That this may happen is within the range of reasonable foresight. Such a person is therefore now taken to be a neighbour in Lord Atkin’s sense, a person to whom a duty of care extends. But when, if at all, there is a duty of care for any other persons who may suffer shock from the spectacle of an accident, must, having regard to decided cases, be regarded as still for us an open question. We must now decide it.

The decision of Donovan J., as he then was, in Dooley v.

Cammell Laird & Co. Ltd., [1951] 1 Ll. L. R. 271, and of Waller J. in Chadwick v. British Railways Board, [1967] 1

W.L.R. 912, were based on the view that it is not only the relatives of a person hurt or endangered who can have damages for nervous shock caused by an accident. In my opinion we should follow these leads. There seems to be no sound ground of policy, and there certainly is no sound reason in logic, for putting some persons who suffer mental damage from seeing or hearing the happening of an accident in a different category from others who suffer similar damage in the same way from the same occurrence.

In the same case Walsh J. said at p. 101 A.L.J.R.:

In the present case the respondent was not a close relative of the man who suffered injury. In my opinion there is no rule of law which made it a condition of the respondent’s right to recover that he should have been a close relative.

No doubt a family relationship between a person who has been injured and a plaintiff who claims to have suffered nervous shock in consequence of that injury may be a relevant and important fact in deciding the question whether or not injury of that kind to the plaintiff was reasonably foreseeable. But there is no warrant for holding that that question, which is a question of fact, must always receive a negative answer unless the plaintiff be a close relative.

Conclusions

The trial judge correctly held that the right of Dolores Bechard to recover damages for her nervous shock depended on whether her shock was reasonably foreseeable by the defendant

Damsgard in all the circumstances. Whether one applies the rule of foreseeability as the principal exercise as suggested by Lord Scarman in McLoughlin, supra, or whether one resorts to policy considerations to place some limit on the foreseeability rule, it seems to me that Dolores Bechard should recover in the circumstances of this case.

Applying the test of reasonable foreseeability the trial judge found that Damsgard should have foreseen that an accident had occurred at the scene and that there could be victims such as Dolores Bechard and Haliburton in the vicinity. The trial judge found that Dolores Bechard had to jump out of the way of the approaching Damsgard vehicle for her own safety. He considered it was entirely foreseeable that Dolores Bechard should suffer nervous shock from observing the gruesome sight of the person she was attempting to save being injured and killed. When I say she was attempting to save Haliburton I adopt the approach of the trial judge that she was indirectly attempting to save him by warning Damsgard of Haliburton’s presence on the road.

Accepting that it is settled law that the rescuer who witnesses a horrible accident to the victim is entitled to recover, I see no reason why that right, as a matter of policy, should not be extended to cover the circumstances involving Dolores Bechard who, as the trial judge found, was performing a role similar to that of the rescuer.

If Dolores Bechard is a person more vulnerable than normal to emotional shock, should she be entitled to recover?

It must not be overlooked that the trial judge rejected the suggestion that Dolores Bechard had a particular susceptibility, that is, a thin skull with respect to post- traumatic stress disorder. He said:

I make the point in this case, however, that she did not have psychologically a thin skull, if I can use that term in dealing with this matter, concerning the development of this post-traumatic stress reaction. The stress reaction occurs in people without pre-morbid dispositions. It tends to be related to the nature of the event experienced and the state of the person at the time of the event. I find, therefore, that the development of this particular psychiatric disturbance after the first accident, caused in part by her seeing the second accident, if the consequences of the first accident are still ongoing, are foreseeable.

The trial judge appears to have made a finding of fact that Dolores Bechard did not have a pre-existing condition which made her particularly vulnerable to the post-traumatic stress disorder. However, assuming that the first accident did initiate this condition and that the second accident significantly exacerbated the condition, it is my opinion that as a matter of law Dolores Bechard is entitled to recover.

In my opinion, it is reasonably foreseeable that witnessing a horrifying or gruesome accident such as occurred here might well upset the average sensitive bystander. The shock she suffered at witnessing the gruesome sight of Haliburton’s body being run over was foreseeable to an average person. That being the case, she was entitled to recover damages for more extensive mental illness due to her unusual susceptibility. In the Duwyn v. Kaprielian case, supra, Morden J.A. said at p. 752 O.R., p. 440 D.L.R.:

It is not a requirement of the foreseeability test that the defendant foresee the precise kind or severity of shock “so long as some shock sufficiently substantial to qualify for redress actually was foreseeable” …

And in the same case Wilson J. said at p. 738 O.R., p. 426 D.L.R.:

… in general, where the type of injury is foreseeable it matters not that the full extent of it is not foreseeable. The full extent of it is nevertheless compensable.

In my view, these statements simply support the well established proposition that the law of damages draws no distinction between the eggshell skull and the eggshell personality. In each case, the tortfeasor takes the victim as found.

Did the trial judge err in failing to apportion the degree of negligence?

As I have pointed out, the trial judge accepted the testimony of Dr. Margulies that both accidents had caused the nervous shock suffered by Dolores Bechard and that Haliburton’s contribution was 25 per cent of the cause and Damsgard’s was 75 per cent. On that approach, the appropriate disposition would have been to hold that Haliburton’s negligence causing 25 per cent of the nervous shock damages, was spent and ended before the second accident. Judgment should then have been entered against the Haliburton estate for 25 per cent of the damages assessed, i.e., 25 per cent of $50,000, or $12,500 and against Damsgard for 75 per cent or $37,500.

The trial judge, however, made a finding that the negligence of Haliburton continued up to the second accident and at the suggestion of counsel, following the trial, he entered judgment against the estate of Haliburton for the entire damages awarded, that is $75,000, with a right of indemnity or recovery from Damsgard of $37,500 with respect to the nervous shock assessment.

In my view, on a careful reading of the reasons it is evident that what the trial judge intended was to apportion liability for the nervous shock damages between the two defendants on a 75/25 basis, holding that each had contributed to the damages in that proportion. On the evidence of Dr. Margulies, it was open to the trial judge to determine the respective degrees of causation. The reference to the negligence of Haliburton continuing up to the second accident was, I am satisfied, an unintentional error. There was no intention that there should be a further apportionment of damages based on the respective degrees of negligence of the two parties as opposed to causal attribution.

Disposition

I would dismiss the appeal with costs.