To See or Not To See: Claiming For Damages After Witnessing Fatal Car Accident
In Bustin v. Quaranto, 2023 ONSC 5732, Vince Quaranto (“the defendant”) brought a motion to strike a claim brought by a bystander alleging personal injuries arising from witnessing a motor vehicle accident.
The court determined the plaintiff alleged sufficient material facts in his claim to establish a duty of care, refusing to grant the defence its motion to strike.
Background
On October 13, 2019, a motor vehicle collision occurred on King Vaughan Road in Vaughan, Ontario. The defendant was driving one of the vehicles, while the second vehicle had two occupants who were severely injured in the collision. Daniel Bustin (“the plaintiff”), was standing outside a nearby property when he witnessed the collision unfold. The collision resulted in two fatalities. The plaintiff proceeded to bring a claim against the defendant alleging he suffered “physical and mental injuries akin to or notionally equivalent to being struck by the defendant’s vehicle in the collision” [1] given what he witnessed.
The defendant moved to strike the claim under rule 21.01(1)(b) of the Rules of Civil Procedure, RRO 1990, Reg 194, on the basis that the pleading disclosed no reasonable cause of action. Given that the plaintiff was simply a bystander who witnessed the accident and had no relationship with anyone involved in the accident, the defendant argued the plaintiff cannot establish the required relational proximity to establish a duty of care.
Analysis
The court will only strike a claim under the rule if it is “plain and obvious” that the claim has no reasonable prospect of success.[2] The court noted that the novelty of the claim, the length and complexity of the issues, and the potential for a strong defence are not factors that would prevent a claim from proceeding to trial. Only where a claim is certain to fail due to a radical defect should it be struck for not disclosing a reasonable cause of action.
The court undertook an analysis of the key components of a negligence claim. To succeed, a negligence claim will require proof of a duty of care, breach of the standard of care, compensable damage, and causation. The existence of a duty of care is determined by applying a two-part test.[3] The first element of the test requires the Court to assess whether there is sufficient proximity between the parties that the defendant would reasonably contemplate that carelessness on their part may cause damage to the plaintiff. If the answer to this is yes, then a prima facie duty of care has been established. The second part of the test requires the court to assess whether any considerations may negate or limit the duty of care. The court found that the plaintiff was able to satisfy the first part of the test with an arguable basis to claim the defendant owed him a duty of care.
In coming to their conclusion, the court maintained the relationship between the parties is of a type that has already been judicially recognized. The court referenced the decision of the English case of Alcock v. Chief Constable of Yorkshire Police[4], which has frequently been cited in Canadian courts. The House of Lords established a duty of care exists towards bystanders and others physically present at an accident who suffer a mental injury from directly witnessing an accident.
In the case at hand, the plaintiff had alleged seeing and hearing the fatal motor vehicle collision that unfolded in front of him. In his statement of claim, it was alleged he “heard the sounds of the initial catastrophic impact of the two vehicles, felt the ground shake, and observed the accident play out with the vehicles rolling and being torn apart in front of him”[5] which would place him in a position of proximity to the accident. Based on the reasoning in Alcock, the court agreed the Plaintiff fit under the bystander category which determined that a duty of care would be owed by the defendant.
The court was satisfied that the required physical proximity was established by the plaintiff to implicate a duty of care on the defendant. Furthermore, the court felt it was not plain and obvious that a successful outcome for this action is impossible or that the claim would not have a reasonable prospect of success. The court stated a more generous approach should be taken to allow novel but arguable claims, such as this one, to proceed to trial.
Takeaways
This decision demonstrates the reality of bystanders being able to claim damages for incidents that have simply been witnessed. This recognition has the potential to create a cascade of liability for accidents beyond those directly involved, and not only in cases of motor vehicle accidents.
Additionally, the court has taken a generous approach and will not often strike claims with uncertain or unsettled jurisprudence. This leaves open the opportunity for more novel issues to be heard, and to proceed towards trial. It is likely that proceeding with a motion to strike a novel claim will not yield a high level of success given the court’s current approach.
[1] Bustin v. Quaranto, 2023 ONSC 5732, at para 5
[2] Ibid, at para 11, citing – Nevsun Resources Ltd. v. Araya, 2020 SCC 5
[3] Ibid, at para 18 – citing Anns v. Merton London Borough Council, [1978] AC 728 (HL)
[4] Ibid, at para 17, citing Alcock v. Chief Constable of Yorkshire Police, [1991] UKHL 5
[5] Ibid, at para 5