IN THE SUPREME COURT OF BRITISH COLUMBIA

Citation:

Deros v. McCauley,

 

2011 BCSC 195

Date: 20110216

Docket: S1629

Registry:
Powell River

Between:

Walter Thomas Deros

Plaintiff

And

Kelly Wayne
McCauley

Defendant

And

Kingsway
General Insurance Co.

Third
Party

Before:
The Honourable Madam Justice Gerow

Reasons for Judgment

Counsel for the Plaintiff:

A.R. Johnston
W.E. Whyard

The Defendant:

No appearance

Counsel for the Third Party:

S. Ip
D. Hunter
M. Both (Articled Student)

Place and Date of Trial:

Powell River, B.C.

October 5-8, 12-15
and 18-20, 2010

Place and Date of Judgment:

Powell River, B.C.

February 16, 2011



 

[1]            
Walter Deros sues for psychological injuries he alleges he sustained as
a result of witnessing a motor vehicle accident on October 25, 2001. The
accident occurred on Highway 97, north of Bear Lake, B.C. Mr. Deros was part
of a crew installing rumble strips on the highway. Mr. Deros claims that
as a result of witnessing the accident in which the vehicle of the defendant, Kelly
McCauley, struck a grinder unit being driven by his friend and colleague,
Michael Lance, he suffered emotional upset and post traumatic stress syndrome
(“PTSD”). Mr. Lance was not seriously injured in the motor vehicle
accident. Liability for the accident was determined by an order of October 26,
2005. The order granted judgment to Mr. Deros on the issue of liability
and the issue of damages was adjourned.

[2]            
The third party, Kingsway General Insurance Co. (“Kingsway”), is Mr. McCauley’s
insurer and has denied coverage to him. Kingsway was added to the action as a
third party in 2006 and filed a statement of defence denying that Mr. Deros
suffered any injury, loss, damage or expense as a result of the accident. While
admitting the defendant was negligent in causing the motor vehicle accident, Kingsway
takes the position that the damages claimed by Mr. Deros are too remote,
and that the accident did not cause the injuries Mr. Deros complains of.

[3]            
At issue in this lawsuit is whether the defendant’s breach caused Mr. Deros’
damages in law, or whether the damages claimed are too remote to be recoverable.

Background

[4]            
At the time of the accident, Mr. Deros was a shareholder of Guardian
Roadworks Ltd. (“Guardian”). Guardian had a contract with the Department of
Highways to install rumble strips on the side of Highway 97, north of Bear
Lake, B.C. Mr. Deros had incorporated Guardian with a partner, Haldon
Bjornson, in 2000, to install rumble strips and reflectors on highways. The
contract Guardian was working on at the time of the accident was the third
contract the company had obtained. The first two contracts had not been
particularly successful. Mr. Deros submits that the reason why the first
two contracts had not been successful was because of equipment problems, and
those problems had been resolved. He anticipated that the current contracts
would be successful.

[5]            
At the time of the accident, Mr. Deros was driving a sweeper and Mr. Lance
was driving a grinder. Mr. Lance was a close friend of Mr. Deros and
had joined Guardian about a month before the accident. The plan at the time of
the accident was that Mr. Lance would eventually replace Mr. Bjornson as
the other shareholder in Guardian. Mr. Deros’ sister, Ellen Knutson, was the
flag person for the job.

[6]            
Mr. McCauley was driving a pickup truck and was inebriated at the time
of the accident. According to the witnesses, Mr. McCauley’s truck passed Mr. Deros’
sweeper travelling at a high speed and hit the grinder driven by Mr. Lance.
The impact of the collision caused the grinder to rotate and pushed it down the
highway.

[7]            
Mr. Deros’ evidence at trial is that he initially thought Mr. Lance
had been killed. However, it became apparent within a few minutes that Mr. Lance
was not seriously injured. Although Mr. Lance was shaken up in the
accident and ended up going to the hospital, he was released the same day.

[8]            
At the time of the accident, Mr. Deros was operating the sweeper
approximately 100 meters behind the grinder that Mr. Lance was driving. The
grinder was pushed an additional 50 to 60 metres down the highway by the force
of the collision. Although Mr. Deros says he saw a metal rod enter the
cab, that point is contentious. I agree that it would have been very difficult
for Mr. Deros to see whether or not the rod entered the cab of the grinder
Mr. Lance was driving from his vantage point, particularly given his
evidence that the grinder was spinning. His observation of the rod going into
the cab of the grinder is a detail that was added to Mr. Deros’ version of
the accident at a later date and after many recounts by him of the
circumstances of the accident.

[9]            
In his initial statement, Mr. Lance said he sat in the machine for
what seemed to be a couple of seconds to collect his senses. He then crawled
out of the machine to see if Mr. McCauley was okay. According to Mr. Lance,
Mr. Deros drove up in his machine and after checking up on Mr. Lance’s
condition, started to push the grinder off the road with his machine and pull
up gravel to absorb the oil spill from the grinder.

[10]        
In Mr. Deros’ initial statement dated November 1, 2001, he
said the pickup hit the grinder square on the back and he saw parts come flying
off both vehicles. The grinder spun around. He stopped the sweeper and stepped
out of it and saw Mr. Lance stepping out of the grinder at the same time. According
to Mr. Deros, both he and Mr. Lance were concerned about clearing the
road as they were stopped in the middle of a blind corner. The November 2001statement
is at odds with Mr. Deros’ evidence and Ms. Knutson’s evidence at trial.
At trial, Mr. Deros and Ms. Knutson testified that after the collision Mr. Deros
sat in his vehicle for a few minutes before getting out and going to check on Mr. Lance
who was slumped over the wheel.

[11]        
There is contradictory evidence regarding whether Mr. Lance got out
of the grinder prior to Mr. Deros getting to it. There is also
contradictory evidence about the time between the accident and when Mr. Deros
became aware that Mr. Lance was not seriously injured in the accident. The
fact that the witnesses’ versions of events are at odds is not surprising given
the passage of time and the confusion following the collision. However, the
evidence establishes that the amount of time between Mr. Deros witnessing
the collision and learning that Mr. Lance was not seriously injured was 10
to 15 minutes at most.

[12]        
As well, the evidence is consistent that immediately after finding out
that Mr. Lance was not seriously injured, Mr. Deros was able to
assist in clearing the highway of both the grinder and the debris from the
accident with his sweeper.

Analysis

[13]        
For the following reasons, I have determined that the harm Mr. Deros
suffered was too remote to be reasonably foreseen and, consequently, he cannot
recover damages from Mr. McCauley.

[14]        
While there is no doubt that the defendant was negligent in causing the
motor vehicle accident Mr. Deros witnessed, I am not satisfied that a
person of ordinary fortitude would suffer a mental injury from witnessing the
accident.

[15]        
As stated in Mustapha v. Culligan of Canada Ltd., 2008 SCC 27,
even if a defendant is found to have breached a duty owed to the plaintiff, the
court must look at whether the damages the plaintiff suffered as a result of
the breach are too remote to be recoverable.

[16]        
In determining whether a damage is too remote, the plaintiff is to be
looked at objectively, not subjectively. In Mustapha at paras. 14-16, McLachlin
C.J. sets out the threshold test for establishing an entitlement to
compensation:

The remoteness inquiry depends not only upon the degree of
probability required to meet the reasonable foreseeability requirement, but
also upon whether or not the plaintiff is considered objectively or
subjectively. One of the questions that arose in this case was whether, in
judging whether the personal injury was foreseeable, one looks at a person of
"ordinary fortitude" or at a particular plaintiff with his or her
particular vulnerabilities. This question may be acute in claims for mental
injury, since there is a wide variation in how particular people respond to
particular stressors. The law has consistently held — albeit within the duty
of care analysis — that the question is what a person of ordinary fortitude
would suffer: see White v. Chief Constable of South Yorkshire Police,
[1998] 3 W.L.R. 1509 (H.L.); Devji v. Burnaby (District) (1999),
180 D.L.R. (4th) 205
, 1999 BCCA
599
; Vanek. As stated in White, at p. 1512: "The
law expects reasonable fortitude and robustness of its citizens and will not
impose liability for the exceptional frailty of certain individuals."

As the Court of Appeal found, at para. 49, the requirement
that a mental injury would occur in a person of ordinary fortitude, set out in Vanek,
at paras. 59-61, is inherent in the notion of foreseeability. This is true
whether one considers foreseeability at the remoteness or at the duty of care
stage. As stated in Tame v. New South Wales (2002), 211 C.L.R. 317,
[2002] HCA 35, per Gleeson C.J., this "is a way of expressing the
idea that there are some people with such a degree of susceptibility to
psychiatric injury that it is ordinarily unreasonable to require strangers to
have in contemplation the possibility of harm to them, or to expect strangers
to take care to avoid such harm" (para. 16). To put it another way,
unusual or extreme reactions to events caused by negligence are imaginable but
not reasonably foreseeable.

To say this is not to marginalize
or penalize those particularly vulnerable to mental injury. It is merely to
confirm that the law of tort imposes an obligation to compensate for any harm
done on the basis of reasonable foresight, not as insurance. The law of
negligence seeks to impose a result that is fair to both plaintiffs and
defendants, and that is socially useful. In this quest, it draws the line for
compensability of damage, not at perfection, but at reasonable foreseeability.
Once a plaintiff establishes the foreseeability that a mental injury would
occur in a person of ordinary fortitude, by contrast, the defendant must take
the plaintiff as it finds him for purposes of damages. As stated in White,
at p. 1512, focusing on the person of ordinary fortitude for the purposes of
determining foreseeability "is not to be confused with the ‘eggshell
skull’ situation, where as a result of a breach of duty the damage inflicted
proves to be more serious than expected". Rather, it is a threshold test
for establishing compensability of damage at law.

[17]        
In order to show that the damage suffered is not too remote to be viewed
as legally caused by Mr. McCauley’s negligence, Mr. Deros must show that
it was foreseeable that a person of ordinary fortitude would suffer a mental
injury from witnessing the accident. He has failed to do so.

[18]        
In fact, Mr. Deros takes the position that he is a “classic thin
skull” and that because of his pre-existing problems, both physical and
psychological, he was more susceptible to suffering a mental injury.

[19]        
Mr. Deros asserts the evidence supports a finding that he is
particularly vulnerable to psychological injury because of his pre-existing
problems. He says that prior to the accident he suffered from chronic pain in
his back and shoulder, edema and sleep apnea. As well, he was obese and taking
heavy dosages of pain killers. Mr. Deros says he suffered from depression
and panic attacks prior to the accident. However, he says he was not suffering
from depression at the time of the accident, and the frequency of his panic
attacks had diminished.

[20]        
Mr. Deros agrees he was suffering from a number of stressors at the
time of the accident. He says several stressors made him more prone to suffer
from PTSD, including the deaths of his daughter and father; his weight gain
after his daughter’s death; the fact he was disabled from many forms of employment
due to his weight gain; and his unemployment. He says the evidence from Dr.
Ancill, Dr. Passey and Dr. Riar supports this finding.

[21]        
Mr. Deros argues, in effect, that the thin skull rule should be
taken into consideration in determining whether his damages were foreseeable. He
says in this case liability has already been determined and, therefore, the
thin skull rule applies. However, even if the plaintiff proves the defendant
owed him a duty and breached the duty, the plaintiff must establish it was
reasonably foreseeable that a person of ordinary fortitude would suffer a
serious injury as a result of witnessing the accident: Mustapha at para.
18. It is only after establishing that it is reasonably foreseeable that a
mental injury would occur in a person of ordinary fortitude that the
circumstances of the particular plaintiff are considered.

[22]        
Mr. Deros relies on the following cases and submits that the
approach taken in them should be utilized in the case at bar: Bonham v. Weir,
2009 BCSC 1080; Joyce v. Dorvault, 2007 BCSC 786; Chowdhry v. Burnaby
(City of)
, 2008 BCSC 1337; Joel v. Paivarinta, 2005 BCSC 73. All of
the cases relied upon by Mr. Deros involve accidents where the plaintiff
has been physically, as well as psychologically, injured.

[23]        
The cases, to which I was referred, where damages for nervous shock have
been awarded to witnesses of accidents who were not physically involved in the
accidents, involve accidents or events which are more shocking than the
accident in this case. All the cases involved accidents in which someone has
died or been seriously injured: James v. Gillespie, [1995] B.C.J. No. 442
(S.C.); Arnold v. Cartwright Estate, 2007 BCSC 1602; Easton v.
Ramadanovic Estate
(1988), 27 B.C.L.R. (2d) 45; Stegemann v. Pasemko,
2007 BCSC 1062; James v. Gillespie, [1995] B.C.J. No. 442 (S.C.); Kwok
v. British Columbia Ferry Corp.
(1987), 20 B.C.L.R. (2d) 318 (S.C.).

[24]        
As set out in Devji v. District of Burnaby, 1999 BCCA 599 at
para. 75, the courts have been careful to limit the circumstances in which
injuries for nervous shock are awarded:

The law in this province, as
formulated by Rhodes, requires that the plaintiffs, in order to succeed,
must experience something more than the surprise and other emotional responses
that naturally follow from learning of the death of a friend or relative.
Instead, there must be something more that separates actionable responses from
the understandable grief, sorrow and loss that ordinarily follow the receipt of
such information. In Rhodes, Taylor and Wood JJ.A. described the
requisite experience as alarming and startling (and therefore sudden and
unexpected), horrifying, shocking and frightening, and Southin J.A. referred to
a "fright, terror or horror".

[25]        
In this case, Mr. Deros witnessed a collision that involved no
serious injuries. Even if I accept Mr. Deros’ evidence at trial that he initially
thought a rod had skewered Mr. Lance, he knew within minutes this did not
occur and Mr. Lance had not suffered serious injury.

[26]        
However, I do not accept the evidence Mr. Deros gave at trial that
he observed the rod go into the cab of the grinder from where he was located in
his sweeper. Mr. Deros was not a particularly credible witness. His
evidence at trial was inconsistent with his evidence in his earlier statements,
affidavits, and at his examination for discovery. When asked to explain the
inconsistencies, he said he has his “good days and bad days”, and that his
evidence at his examination for discovery was only 90% true.

[27]        
As stated earlier, Mr. Deros did not mention observing the rod go
into the cab of the grinder until sometime after the accident, and after he had
retold the story of the accident on many occasions, including deposing to the
manner in which the accident occurred in affidavits. It is evident that Mr. Deros
has brooded about the accident, and it is reasonable to infer he determined at
a later date he must have seen the rod enter the cab of the grinder.

[28]        
In my view, it is reasonable to conclude from all of the evidence that
what Mr. Deros saw was Mr. McCauley’s vehicle hit the grinder, and the
grinder spin around. When Mr. Deros approached the grinder, he saw the rod
going into the cab, but it was apparent almost immediately that the rod had not
hit Mr. Lance, and Mr. Lance had not suffered any serious injury. In
my view, the most accurate version of events, and the one I accept, is
contained in Mr. Deros’ initial statement in November 2006, i.e. Mr. Deros
saw Mr. Lance stepping out of the grinder as he stepped out of the sweeper.

[29]        
There is no evidence that a person of ordinary fortitude would have
suffered nervous shock injury or mental illness as a result of witnessing this
accident. The experts testified about Mr. Deros’ particular reaction to
the accident, but not that a person of ordinary fortitude would have suffered mental
injury.

[30]        
Mr. Deros does not argue that a person of ordinary fortitude would
suffer mental injury from witnessing this accident. Rather, Mr. Deros argues
that the evidence from the experts establishes that he was more prone to suffer
from PTSD than an ordinary person was from witnessing this accident. As stated
earlier, Mr. Deros argues that the evidence supports a finding he suffered
mental or psychological injury from witnessing this accident because he was
more prone to injury as a result of his pre-existing condition, i.e. he was a
thin skull, and was not a person of ordinary fortitude.

[31]        
Having failed to establish that a person of ordinary fortitude would suffer
a mental injury from witnessing this accident, it follows that Mr. Deros’
claim must fail.

[32]        
For the reasons above, I conclude that the loss suffered by Mr. Deros
is too remote to be reasonably foreseen and that as a result, he cannot recover
damages from Mr. McCauley. Accordingly, I am dismissing his claim. The parties
are at liberty to make submissions regarding costs.

“Gerow
J.”