Rhodes+v+Canadian+National+Railway


 * __Facts__**: The plaintiff became seriously depressed after her son, with whom she was very close, was killed in train wreck caused by CNR’s negligence. She sued for damages for **nervous shock resulting from her experiences in the aftermath of her son’s death:** being misdirected when going to the crash site, not knowing whether her son was dead for a while, being shown the wreckage of the wrong train car, being directed to the wrong memorial service, receiving her son’s remains in the mail. She also claimed that the loss of her son was the **proximate cause** of her illness and that the illness was a foreseeable consequence of CNR’s negligence.

This is an appeal from the decision of a preliminary application as to whether the facts could support a claim for nervous shock.


 * __Issue__**: Can the facts sustain an action for **nervous** **shock**? i.e. Was there a duty of care respecing conduct resulting in ‘nervous shock’, unaccompanied by physical injury? (Lower court: Yes.)


 * __Held__: NO.** Appeal allowed


 * __Reasoning__ (Wallace JA)**:

Lord Atkin in //Donoghue// expressed the ‘neighbour’ principle and the view that a proximity relationship was a prerequisite to the creation of a duty of care, but noted that there will be cases where it is difficult to determine whether the relationship is close enough … and courts have grappled with this ever since

Wallace JA considers English, Australian, American, and BC case law, and concludes… - nervous shock cases (psychiatric injury as the result of observing, experiencing or hearing of direct physical injury to a third party – usually a close relative) are different from traditional tort cases (inflicting direct physical injury) and so require a **different approach** - grief, sorrow, or “reactive depression” are not really compensable, so foreseeability and causation become especially problematic: “**to resolve the issues of foreseeability and causation, some factors beyond the psychiatric illness sustained by the plaintiff and the foreseeability of injury must be established**.”

- the **proximity relationship** between pff and the dft’s conduct provides the **evidentiary base** from which the court may conclude, as a question of **law**, that a reasonable person should **foresee** that his conduct could create a risk of **“direct”** psychiatric injury and so give rise to a duty of care to avoid such injury

- **direct = compensable =** caused by the “shock” or dft’s tortious conduct - **indirect = not compensable =** resulting from subsequent reaction to the death of or injury to a loved one and the sorrow, anxiety, grief one experiences

1) relational proximity (the class of person advancing the claim) 2) locational (being at the scene and witnessing the event) 3) temporal proximity (relationship between the time of the event and the onset of psychiatric illness)
 * Wallace JA highlights important elements for a proximity relationship: **

[Note: - This picks up on the factors outlined by Lord Wilberforce [in //McLoughlin// (1983)], who also listed the nature of the event/conduct which caused the shock (ex. communication of news that a loved one has been injured or killed). - Also, Wallace JA does //not// include “causal proximity” because he doesn’t get it]

- proximity relationship is not alone decisive - the closeness between **victim** and **plaintiff** tends to predominate in these considerations

“All such factors, which together constitute the requisite degree of relational proximity between the **complainant** and the **defendant’s** **conduct** are material in considering whether the risk of direct psychiatric injury was reasonably foreseeable….”


 * //In this case//**, the mother didn’t arrive at the scene until 8 days later. Other incidents contributed to her “post-accident distress” but they were not attributable to the defendants. Her exceptionally close relationship with her son (the **victim**) is not enough to establish the proximity relationship (between plaintiff and defendant’s conduct).

- We must be careful not to confuse 2 analyses: (1) proximity in relation to the reasonable foreseeability giving rise to a duty of care (2) proximity in relation to //causation// à We have to resolve the duty of care question //first//, before going anywhere near (2).


 * __Reasoning__ (Southin JA)**

Southin JA frames the issue not primarily as one the existence of a duty of care, but one of “when, if at all, a person can recover for damage to the mind **causally** **connected** to the careless act of another.” However, he comes back to the duty of care in concluding that “if the act of carelessness **causes** the claimant to be frightened, terrified or horrified … and that fright, terror or horror causes a permanent impact on the claimant’s mind, the claimant is entitled to recover, **subject to the claimant being within the ambit of the duty of the negligent actor.**”

- On the question of proof of “impact”: Southin JA concludes that **fright** or **terror** whether for oneself or others, can be the “connecting factor” between the event and the psychiatric harm, and that he would add **horror** to that list (presumably, this is a case of “horror”).

-On the question of the **nature of the injury**: “**scars on the mind”** are compensable just as scars on the flesh are, including scars said to lead to ‘psychiatric illness’, and so should be made conventional.

Southin JA rejects the claim because 1) No express plea of “fright”, “horror” or “terror” and the particulars given do not fall within the concept of the authorities. Also, a lot of the events following the accident that caused her distress were not the railway’s actions. 2) No “**scar on the mind”** established 3) Nor has she suffered physical injury leading to her mental condition (this would bring her within the //Bell// case)

We need to reconsider the **meaning of “closely and directly affected”** – once we accept that there can be claims for psychological injury as well as physical, it is not in keeping with the spirit of //Donoghue// that “close and direct” necessarily means physical or temporal proximity.
 * __Reasoning__ (Taylor JA concurring): **

Anyway, in this case, there was not the “close and direct” requirement. The injury was merely an “**indirect consequence**” i.e. ‘a consequence not of the impact of the negligent conduct on the pff’s own sense, but of the pff’s reaction to the impact which the negligent conduct has had on someone else.” There is no evidence indicating that the accident had a direct impact on the plaintiff’s psychological condition “in the sense of an impact other than that brought about by the knowledge that her son had died in it”

//Note//: Taylor JA is //the concurring judge//, meaning that his reasons differ from the others. All three accept that non-physical injury/nervous shock/psychological harm are potentially compensable, but the main difference is that Wallace JA and Southam JA allow for "relational" loss - the possibility of claiming for nervous shock when the plaintiff is somehow related to the victim of the direct "impact". Taylor JA does not seem to allow for that possibility.
 * __RATIO__ (W): There must be a //proximity// relationship between __claimant__ and __defendant’s conduct__ in order to establish liability for psychiatric shock, and it is the proximity relationship that serves as the evidentiary //basis// for finding that the injury was //reasonably foreseeable//. A close relationship between __victim__ and __claimant__ may be an important factor in establishing proximity, but is not necessarily sufficient. **
 * __RATIO__: (S): Scars on the mind" are in theory compensable.A person can recover for damage to the mind if the act of carelessness //causes// the claimant to be frightened, terrified or horrified, whether for oneself //or for someone else//,and that fright, terror or horror causes a permanent impact on the claimant’s mind, subject to the claimant being within the ambit of the duty of the negligent actor. " **
 * __RATIO__ (T): The possibility of claiming for psychiatric shock depends on there being a “close and direct” relationship. This requirement does not preclude non-physical or non-temporal proximity, but it is still necessary that the injury be a //direct// consequence of the negligent conduct: a psychological illness resulting from one's reaction to the direct impact of negligence on someone //else// is indirect, and therefore not compensable. **