Last month we blogged about the Supreme Court of Canada’s (SCC’s) potentially game changing decision in Saadati v. Moorhead. This week we explore the practical application of that decision in a recent action for negligence and damages for mental distress, filed by the family of a paramedic killed in a helicopter crash that occurred while the paramedic was on duty.
The paramedic in question was killed in May 2013, when a medical helicopter that he was traveling on crashed and burned. The paramedic left behind two parents and a 16-year old daughter.
The paramedic’s family commenced a lawsuit against the company who operated the helicopter claiming that the paramedic’s death had been completely avoidable and occurred solely due to the gross negligence of the company. They requested damages for mental distress flowing from the paramedic’s death.
In response, the company argued that the family had no grounds to file their lawsuit since no right of action exists for mental distress resulting from the negligently caused death of a person. The exception would have been if they had witnessed the accident or its aftermath, which they had not. The company filed a motion to strike the family’s claim on the basis that it disclosed no reasonable cause of action.
Bars to Recovery of Damages for Mental Injury in Negligence
Since the seminal decision in Baker v. Bolton more than 200 years ago, the law has stated that the right to bring a tort action (i.e civil wrong claim) does not “survive the death of a person”, and, therefore, neither a deceased person’s estate nor their relatives have a right to sue for losses (i.e. damages) stemming from their death.
A strict application of the principle outlined in Baker had the strange effect of permitting, for instance, a parent to sue for mental disorder if their child had been injured due to the someone else’s negligence, but not if their child had been killed due to such negligence.
Moreover, further obstacles to recovery for mental injury were later identified in another early decision, McLoughlin v. O’Brian, which continued to apply in such cases for many years.
McLoughlin identified limits caused by “relational proximity” (i.e. the class of individuals whose claims would be recognized), “geographical proximity” (i.e. the proximity of those individuals to the accident), or “temporal proximity” (i.e. the means by which their mental distress was caused).
In situations where individuals were claiming mental injury arising out of a sudden traumatic event, later judgments further distinguished between a “primary” victim (i.e. someone who was directly involved as a participant), and a “secondary” victim (i.e. someone who witnessed physical injuries caused to others).
Saadati v. Moorhead
In this case, the paramedic’s family argued that claims in negligence for damages for mental injury suffered by a family member following the death or injury of another family member were permitted. They specifically pointed to the Saadati decision where the SCC had rejected the use of various considerations, such as temporal or geographic proximity, as absolute bars to recovery of damages for mental injury in negligence. The family also argued that the SCC had noted, in Saadati, that a person making a negligence claim is not required to prove a recognized psychiatric illness in order to establish that he or she suffered a mental injury as long as:
the disturbance suffered by the claimant is ‘serious and prolonged and rise[s] above the ordinary annoyances, anxieties and fears’ that come with living in civil society.
The Ontario Superior Court of Justice concluded that it was “not plain and obvious” that there was no reasonable prospect of success to the family’s claim for damages for mental distress as a result of the paramedic’s death, and dismissed the company’s motion to dismiss.
The Court noted that there has been long a history of allowing claims in negligence for mental injury as long as the person bringing the claim witnessed a person’s injury, death, or the aftermath of the injury or death (as had been noted by the company in its response in this case). Moreover, in Saadati, the SCC had rejected the view of primary and secondary victims as well as the view that there are certain geographic, temporal, or relational proximity restrictions that would absolutely limit the duty to take reasonable care to avoid causing foreseeable mental injury.
Based on this, it was the Court’s view that the family’s claims for mental distress following the paramedic’s death might succeed even though they were secondary victims who had not witnessed the accident. Per the Saadati decision, the outcome of this decision should turn on the application of the elements of a negligence claim to the facts at hand, rather than “on the separate application of geographic, temporal, and relational considerations or a distinction between “primary” and “secondary” victims.”
We will continue to follow further developments in this matter as they unfold. In the meantime, if you have questions about what effect the Saadati claim may have on matters going forward, in particular, claims of negligence, contact Wise Health Law. We have significant experience and expertise assisting health professionals in the civil and regulatory contexts and are passionate about what we do. Our offices in Toronto and Oakville are easily accessible. Contact us online, or at 416-915-4234 for a consultation.