Seeing dead people (and lawsuits)

In your time on Earth, you have probably witnessed some horrific sites and scenes. Hopefully, those scenes didn’t leave you with any psychological scars. But, maybe they did. If they did, you might be able to start a lawsuit.

I’ll back up...

Have you ever driven by a car crash? You probably have. You’ve probably even driven by a car crash in which someone was killed. If you did, though, you probably didn’t see any blood or anything like that. Ambulance and other emergency crews had probably already arrived (and quarantined the shocking bits).

But, let’s imagine that that didn’t happen. Let’s imagine that you saw something horrific.

Here’s an example: you are driving on Okanagan Lake’s floating bridge and, when doing so, you see a school bus, full of children, get in an awful crash. Many of the children are significantly injured and some of them are killed...and you see this. You actually see their final, struggling moments of life.

Or, here’s another example: you are a spectator at a car race and, while there, you witness a horrific car crash…and the horrific and gruesome death of one of the drivers.

Quite obviously, these are horrific scenes. It isn’t hard to imagine that you would suffer some significant mental scars from witnessing these scenes. Maybe you would suffer depression? Anxiety? Who knows...

If you end up suffering a psychological injury as a result of witnessing something horrific, you MIGHT be able to sue (to recover your losses). The key word: MIGHT.

Here’s the law: if you suffer psychological injury as a result of witnessing a shocking and horrific event, then you MAY be entitled to recover your losses, which includes your medical expenses and an award for pain and suffering.

This type of legal claim is referred to as a NERVOUS SHOCK claim.

The shocking event must have been caused by the negligence of another person, like a speeding driver. And, in order to recover, you must have been present for the event, or its immediate aftermath. So, in other words, it is VERY unlikely that you could successfully sue someone if you happen to see something horrific on television.

Keep in mind, though, that the psychological injuries must be serious and prolonged. Quite obviously, they must be worse than ordinary annoyances, anxieties, or fears (that we all experience in our everyday lives).

These claims have a lot of nuances and are complicated. They are not easy to win.

Here is a recent example of an unsuccessful claim: Mustapha v. Culligan of Canada Ltd., 2008 SCC 17.

Mr. Mustapha saw a dead fly in an unopened jug of water supplied by Culligan. Mr. Mustapha and his family had consumed Culligan’s water for the past 15 years (but did not drink the “fly water”). Mr. Mustapha became obsessed about what he had seen and was concerned about the health implications on his family (for drinking the water in the past). Mr. Mustapha was later diagnosed with major depressive disorder with associated phobia and anxiety. In the end, Mr. Mustapha’s claim failed because his reaction to the dead fly was very unusual (and a typical person would not have reacted the same way).

Here’s some advice: next time you pass by a serious car crash or other horrific scene or site, avert your eyes down – it’s a lot easier than starting a lawsuit.

And now you know.

**The information contained in this column should not be treated by readers as legal advice and should not be relied on without detailed legal counsel being sought.

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About the Author

Jeff Zilkowsky is a lawyer practicing at MacLean Law in the Lower Mainland and in Kelowna, and focuses his practice on family law and litigation.  

In his column, Jeff provides information about current legal events or points of interest or concern relating to the law. 

The information contained in Jeff’s column should not be used or relied upon as legal advice.

Comments are always appreciated and encouraged, so don’t hesitate to email Jeff at [email protected]

Visit Jeff’s website at www.jeffzilkowsky.com or visit the website of MacLean Law.

The views expressed are strictly those of the author and not necessarily those of Castanet. Castanet does not warrant the contents.

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