Couple make claims alleging nervous shock following infant death
The Court of King’s Bench of Alberta has partly granted an appeal to amend a statement of claim in a medical negligence case involving the death of a newborn. The proposed amendments included additional psychological injuries and another named plaintiff.
In December 2017, the original plaintiff in this case gave birth in the presence of her partner. Three days after the delivery, the baby died of severe hypoxic ischemic encephalopathy.
Two years following the death, the plaintiff filed a statement of claim against a doctor. She asked for bereavement damages on her and her partner’s behalf under Alberta’s Fatal Accidents Act, 2000.
In June 2021, the plaintiff asked the court to allow her to amend the statement of claim to include her partner as a named plaintiff in the case and to request damages for personal, psychological, psychiatric, and emotional injuries that they allegedly suffered in relation to the labour, the delivery, and the son’s death.
The applications judge denied the request, which prompted this appeal.
In Bowes v McCubbin, 2024 ABKB 504, the Alberta Court of King’s Bench partly allowed the appeal to add the partner as a named plaintiff in this case and to include her personal claim for nervous shock, which was a form of psychological injury. The trial would address whether she brought this claim within the relevant limitations period, the court said.
However, the court denied the original plaintiff’s request to add her own personal claim for nervous shock. The court based this denial on insufficient evidence and alternatively on the expiry of the applicable limitations period to commence this claim.
The court rejected the argument that the proposed amendments were hopeless. The court noted that tort claims for nervous shock were recognized as a common law cause of action in Canada. Alberta case law supported the possibility of claiming nervous shock damages even when a claim under the Fatal Accidents Act was involved, the court explained.
The court categorized the proposed amendments as significant but with a low evidentiary threshold. The court found sufficient evidence of both the hearsay and non-hearsay variety, including hospital records, to support the mental health injury claim of the new named plaintiff. But the court decided that the original plaintiff failed to offer adequate evidence to support her psychological injury claim.
Next, the court tackled the issue of whether Alberta’s Limitations Act, 2000, which required claims to be commenced within two years of discovering an injury, barred the proposed amendments.
Regarding the new named plaintiff, the court deemed the evidentiary record insufficient for it to determine whether she knew or should have known about her injury. Thus, the court left this issue for trial.
In relation to the original plaintiff, the court decided that she knew or should have known about her injury within weeks of the infant’s death. Thus, the court found her proposed amendments untimely under the Limitations Act.
