By: Michael Blinick, Partner & Dylan Zamani, Articling Student
Preface
It is obvious that motorists owe a duty of care to innocent bystanders who are injured as a result of a motor vehicle accident. It is also rather obvious that a traumatic motor vehicle accident could result in a bystander suffering from mental health challenges as a direct result of witnessing a significant accident. However, is witnessing a significant event sufficient to support a personal injury claim for damages? The recent decision in Bustin v. Quaranto[1] suggests yes as the Court held that a witness to a traumatic event who has developed significant psychological injury has a sufficiently reasonable prospect of success in trial, despite the novelty of the cause of action and the expansion of potential tort exposure.
Facts & Analysis
The Plaintiff, Daniel Bustin, was a witness to a fatal motor vehicle accident that occurred on October 13, 2019. The Defendant’s vehicle collided with a second vehicle with two occupants, both of whom were fatally injured in the collision. Mr. Bustin commenced an action against the at fault motorist for the collision claiming that he suffered psychological and mental injuries akin to or notionally equivalent to being struck by the at fault vehicle.
Following the initiation of the action, the Defendant brought a motion for summary judgement seeking to dismiss the action. The Defendant argued that there was no duty of care owing to the Plaintiff, that the injuries were not a reasonably foreseeable consequence of the Defendant’s action, and that the Plaintiff was not directly involved in the collision and therefore lacking sufficient proximity to support a tort claim. Additionally, the Defendant argued that allowing the Plaintiff’s claim would lead to issues of claimant indeterminacy.
The Court referenced the frequently cited English case of Alcock v. Chief Constable of Yorkshire Police[2] (“Alcock”) for the guiding principles on tort actions involving bystanders physically present at an accident who subsequently suffer from nervous shock, and noted:
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 not perhaps be entirely excluded from it if the circumstances of a catastrophe occurring very close to him were particularly horrific.[3]
The court accepted that the Plaintiff could be successful in establishing that a duty of care was in fact owed to him under the bystander category identified in Alcock, and that:
…any uncertainty or novelty arising from unsettled jurisprudence should not cause the claim to be struck…the court should adopt a generous approach that errs on the side of allowing a novel but arguable claim to proceed to trial”.[4]
Implications Moving Forward
This decision somewhat clarifies the potential expansion of the duty of care that a driver owes to witnesses of a severe accident and their potential obligation to compensate these witnesses if/when they suffer subsequent mental health challenges. While this decision only theorizes that such a claim could succeed, insurers and self-insured entities may now face an increase in the number of claims being advanced by witnesses to an accident. In this respect and until the case law is further flushed out, it is unlikely that courts will be willing to determine whether an accident is sufficiently severe, horrific, or catastrophic to support a claim by a witness at the summary judgment stage of litigation. As such, there is likely to be an increase in the number of potential claimants who may initiate claims following motor vehicle accidents.
[1] Bustin v. Quaranto, 2023 ONSC 5732 (Summary Judgement Endorsement Decision)
[2] Alcock v. Chief Constable of Yorkshire Police, [1991] UKHL 5
[3] Supra note 1, at para 25
[4] Ibid at para 27