Tort of negligent infliction of mental injury proceeds to trial: BC Supreme Court

The BC Supreme Court has refused to dismiss, by way of summary trial, a case involving the tort of negligent infliction of mental injury. Accordingly, the case will proceed to trial.

In Stroup v. Klassen, 2023 BCSC 1944, the plaintiff’s daughter, Madeline, died in a car accident at a rural intersection in Abbotsford. Madeline was in a pickup truck driven by her boyfriend when the vehicle collided with an SUV driven by Frank Klaassen. Madeline was airlifted to Royal Columbian Hospital (RCH) in New Westminster.

Over the next six days, Madeline remained in the hospital in an unconscious state. Her parents visited Madeline frequently during that time. Unfortunately, she passed away after doctors removed her life support.

Her parents brought an action against the two drivers and the City of Abbotsford for the tort of negligent infliction of mental injury. The defendants sought summary dismissal of the action, claiming that the evidentiary record did not show sufficient proximity with the plaintiffs to ground a duty of care. They argued that the plaintiffs did not witness their daughter’s accident or its immediate aftermath.

The plaintiffs disagreed, asserting that the court could not determine through a summary trial through a summary trial their negligent infliction of mental injury claim. They contended that they saw their daughter in a comatose state in the hospital after the accident, and they continued to attend the hospital for several days until their daughter died. The plaintiffs argued that the issue of whether this constitutes sufficient proximity for a finding that the defendants owed them a duty of care would require a full trial for determination.

Ultimately, the BC Supreme Court agreed with the plaintiffs, stating that it was not satisfied that it could decide fairly through summary trial the viability of the plaintiffs’ negligent infliction of mental injury claim.

The court noted that the essential elements of the tort of negligent infliction of mental injury are the same as those of traditional personal injury negligence claims, which include the duty of care. The court also noted from case law that the class of persons to whom a duty of care to not cause psychiatric harm is owed are limited by reference to notions of “relational,” “locational,” and “temporal” proximity.

The defendants argued that the facts of the case did not meet the legal test for locational proximity as established by jurisprudence. Accordingly, the defendants said the plaintiffs’ negligent infliction of mental injury claim can be fairly dismissed through summary trial.

However, the court pointed out that a review of jurisprudence revealed that the facts of this case may or may not establish that the defendants owed a duty of care to the plaintiffs. For example, the court cited two cases in which negligent infliction of mental injury claims were dismissed even though the plaintiff saw their injured or dead relative shortly after an accident. On the other hand, such claims were allowed in other cases. The court stressed that each case turned on its facts. The court could not discern any “bright line” regarding where, when, and how a plaintiff can be said to have experienced compensable mental injury from seeing their relative after an accident.

The court noted the Supreme Court of Canada’s prohibition on a formal or rigid application of the locational and proximity factors. Instead, they must be applied flexibly to capture all relevant circumstances that might determine whether a duty of care is owed.

The court found that the unclear scope of locational proximity and the concept of “immediate aftermath” rendered it unjust for the court to decide and dismiss the plaintiffs’ negligent infliction of mental injury claim in a summary trial. Accordingly, the court dismissed the defendants’ summary trial applications. The case will proceed to the trial scheduled to take place in three months.