This case involves a plaintiff who claimed personal injury damages after witnessing a very serious collision and its aftermath. The plaintiff happened to stand outside his aunt’s home when two cars collided and he “heard the sounds of the initial catastrophic impact of the two vehicles, felt the ground shake, and observed the accident play out with the vehicles rolling and being torn apart in front of him”. The collision resulted in two fatalities, and the plaintiff claimed that as a result of what he saw that day, he “suffered physical and mental injuries akin to or notionally equivalent to being struck by the defendant’s vehicle in the collision”.
The defendant brought a motion to strike the claim, on the basis that a) he did not owe a duty of care to the plaintiff; b) the plaintiff’s injuries were not a reasonably foreseeable consequence of the defendant’s actions; c) the plaintiff was not involved in the accident, not even as a Good Samaritan who tried to help the victims; and d) recognizing a duty of care under these circumstances would lead to issues of claimant indeterminacy (i.e., it would impose liability on an indeterminate class). On a broader scale, the defendant claimed that the Statement of Claim disclosed no reasonable cause of action and should be dismissed.
The motion was heard by Doi J. who noted that on a motion to strike under Rule 21.01(1)(b) the facts as pleaded are assumed to be true and the moving party has a heavy burden to discharge. A novel cause of action is in and of itself not sufficient cause to strike a pleading. The court quoted with approval R. v. Imperial Tabacco Canada Ltd., 2011 SCC 42 where the court held that the law is not static and “actions that yesterday were deemed hopeless may tomorrow succeed”.
Doi J. dismissed the motion and held that “neither the novelty of the claim, the length and complexities of the issues, nor the potential for a strong defence should prevent a claim from proceeding to trial”. In coming to this conclusion, the court undertook an analysis of the key components of a negligence claim, those being duty of care, breach of the standard of care, compensable damage, and causation.
The duty of care requires that there be sufficient proximity between the parties such that the defendant could reasonably foresee that his actions could harm the plaintiff. However, foreseeability of injury by shock or mental distress, which is what the plaintiff was claiming, is moderated by policy concerns such as was the case in Mustapha v. Culligan of Canada Ltd., 2008 SCC 27. However, any policy concerns at play in the case at hand should be dealt with by the trial judge and not decided on a motion.
Applying the law to the case at hand, Doi J. found that the plaintiff had at least an arguable case that the defendant owed him a duty of care. In doing so, the court relied on Alcock v. Chief Constable of Yorkshire Police, [1991] UKHL 5 where the House of Lords allowed a similar claim, stating:
“The case of a bystander unconnected with the victims of an accident is difficult. Psychiatric injury to him would not ordinarily, in my view, be within the range of reasonable foreseeability, but could perhaps not be entirely excluded from it if the circumstances of a catastrophe occurring very close to him were particularly horrific.”
In the case at hand, the plaintiff witnessed the crash as it unfolded, and this was a particularly severe collision that left two people dead. On this basis, Doi J. found that the plaintiff established the required physical proximity and therefore, a duty of care owed to him by the defendant. Therefore, it was “not plain and obvious” to the court that the plaintiff’s claim had no reasonable prospect of success and the motion to strike was dismissed.
