SUPREME COURT OF PRINCE EDWARD ISLAND. Public Trustee as Litigation Administrator of the Estate of Philip Douglas Hubley

Transcription

1 SUPREME COURT OF PRINCE EDWARD ISLAND Citation: Hubley v. Est. Hubley 2010 PESC 38 Date: Docket: S1-GS Registry: Charlottetown Between: And: Denise Hubley Public Trustee as Litigation Administrator of the Estate of Philip Douglas Hubley Plaintiff Defendant BEFORE: The Honourable Justice Gordon L. Campbell Appearances: Bruce W. Evans for the Plaintiff Tracey L. Clements and Rosemary Scott, Q.C., for the Defendant Place and date of hearing - Charlottetown, Prince Edward Island March 25, 2010 Place and date of judgment - Charlottetown, Prince Edward Island September 7, 2010

2 Page: 2 PRACTICE - Pleadings - Statement of claim - Striking out for absence of a reasonable cause of action. A wife sued her husband s estate for loss of the benefit of his future earnings and pension benefits after he was killed in a car accident which she pleaded was due 100% to her deceased husband s negligence. STATUTES REFERRED TO: Rule 21.01(b) of the Rules of Court; Fatal Accidents Act, R.S.P.E.I. 1988, Cap. F-5 (the FAA) CASES REFERRED TO: Hunt v. Carey Canada Inc., [1990] S.C.J. No. 93; Charlottetown (City) v. Bank of Montréal 2006 PESCAD 26; Canadian National Railway Co. v. Norsk Pacific Steamship, [1992] S.C.J. No. 40 (S.C.C.); Ordon Estate v. Grail, [1998] 3 S.C.R. 437, 1998 CanLII 771 (S.C.C.); R. v. Salituro, [1991] 3 S.C.R. 654; Cooper v. Hobart, 2001 SCC 79, [2001] 3 S.C.R. 537; Anns v. Merton London Borough Council, [1978] A.C. 728; Cady v. Anderson, 1992 CarswellBC 2387 (BCSC); Greatorex v. Greatorex, [2000] 4 All ER 769 (High Court QB), [2000] EWHC 223 (QB); Admiralty Commissioners v. S.S. Amerika, [1917] A.C. 38 Campbell J.: [1] The facts set out by the Plaintiff are not in dispute. In June 2004, Philip Hubley was driving his car in eastern Prince Edward Island. His wife, Denise Hubley, was in the passenger s seat. Philip failed to stop at a stop sign. His vehicle collided with another vehicle. As a result, Philip was killed and Denise was injured. Denise Hubley commenced an action against her husband's estate. The Amended Statement of Claim includes the following allegations and claims 1 The Plaintiff claims:... (j) (k) general damages for loss of care, guidance and companionship of her husband, Philip Hubley, in a sum presently unknown but which will be provided to the Defendant on a timely basis; and loss of pension benefits and earnings which she would have received from her husband, Philip Hubley, in an amount not fully known at this time.

3 Page: 3 6 The collision and resulting injuries and economic losses to Denise Hubley were caused solely as a result of the negligence of Philip, full particulars of which include: (a) failing to stop at a stop sign; 7 As a result of the collision, Denise Hubley sustained painful physical injuries 11 As a result of the negligence of Philip, the Plaintiff sustained economic losses, including the loss of benefits to her from Philip s employment earnings and Philip s retirement pension benefits. 11A As a result of the negligence of Philip, the Plaintiff has lost the care, guidance and companionship of her husband, Philip. [2] The Defendant filed a Motion pursuant to Rule (b) of the Rules of Court to strike out paragraphs 11 and 11A of the Amended Statement of Claim and any claims for damages made in connection with the allegations in those paragraphs, including those made in paragraph 1(j) and 1(k) of the Amended Statement of Claim. The Defendant s stated grounds are that it is "plain and obvious" that the allegations cannot succeed and that the Plaintiff cannot recover the damages claimed based on the allegations that the Plaintiff's husband negligently killed himself. [3] The Amended Statement of Claim does not mention the Fatal Accidents Act, R.S.P.E.I. 1988, Cap. F-5 (the FAA). Counsel for the Plaintiff states in his argument that they did not plead and are not relying on the FAA, but instead are relying on the common-law principles of negligence and the Plaintiff s right to sue in negligence for loss of guidance, care and companionship caused by the negligent death of her husband. [4] The Defendant's position is that the claims are not recognized at common law, and ought not to be, and the claims are not authorized under the FAA and the FAA cannot be judicially extended to cover such claims. [5] The test to be applied on any motion to strike a Statement of Claim on the ground that it discloses no reasonable cause of action is well-established. The leading Supreme Court of Canada case is Hunt v. Carey Canada Inc., [1990] S.C.J. No. 93. Madame Justice Wilson, speaking for the court, said, at paragraph 33: 33 Thus, the test in Canada governing the application of provisions like Rule 19(24)(a) of the British Columbia Rules of

4 Page: 4 Court is the same as the one that governs an application under R.S.C. O. 18, r. 19: assuming that the facts as stated in the statement of claim can be proved, is it "plain and obvious" that the plaintiff's statement of claim discloses no reasonable cause of action? As in England, if there is a chance that the plaintiff might succeed, then the plaintiff should not be "driven from the judgment seat". Neither the length and complexity of the issues, the novelty of the cause of action, nor the potential for the defendant to present a strong defence should prevent the plaintiff from proceeding with his or her case. Only if the action is certain to fail because it contains a radical defect ranking with the others listed in Rule 19(24) of the British Columbia Rules of Court should the relevant portions of a plaintiff's statement of claim be struck out under Rule 19(24)(a). [6] The applicable principles were further cited by the Prince Edward Island Supreme Court- Appeal Division in Charlottetown (City) v. Bank of Montréal 2006 PESCAD 26, at paragraphs 11-13: 11 Rule 21.01(1)(b) provides that a party may move before a judge to strike out a pleading on the ground that it does not disclose a reasonable cause of action or defence. Rule 21.01(2)(b) provides that no evidence is admissible on such a motion. In considering such a motion, the judge is to accept as correct the facts as pleaded in the pleading under attack, in this case the statement of claim. There is a presumption at this stage of the proceeding that the facts as pleaded in the statement of claim are capable of proof at trial. 12 In the application of Rule 21.01(1)(b), the court must guard against the possibility of depriving a person of access to the judgment seat without the benefit of a trial where the person has an opportunity to bring forth all the relevant facts. Nevertheless, there are those cases which, as pleaded, do not stand any chance of success. It would work a similar injustice and an abuse of the court's processes to have the party opposite expend resources to defend the action when it is plain and obvious the claim cannot succeed. 13 Only in the clearest of cases will the court strike out a statement of claim at this stage of the proceedings. On a generous reading of the pleading and accepting that it discloses facts which are correct, it must be plain and obvious the statement of claim does not disclose a reasonable cause of action in fact and law before it will be struck. If there is a chance a plaintiff might succeed, the action should be allowed to continue. The length or complexity of the proceeding, the novelty of the action and the potential of the defendant

5 Page: 5 presenting a vigorous defence are not factors which enter into a consideration of whether the statement of claim should be struck out as disclosing no reasonable cause of action. See: Hunt v. Carey Canada Inc., [1990] 2 S.C.R. 959 (SCC) at p [7] The Plaintiff states the alleged cause of action is negligence on the part of the driver of a motor vehicle in driving through a stop sign and colliding with another motor vehicle. It is alleged that this negligence in turn caused losses to the Plaintiff passenger including personal injuries, relational economic losses of pension benefits and earnings which she would have received from her husband, and relational general damages for loss of care guidance and companionship of her husband. The Plaintiff states the duty of care owed by a driver of an automobile towards his passenger is beyond question, and the normal rules of negligence regarding liability and damages that would apply to any driver and passenger should not be applied any differently just because the negligent driver was married to the injured passenger at the time of the accident. [8] No new or novel legal duty has to be established, according to the Plaintiff. The Plaintiff argues her claims for relational economic loss fall within the category of pecuniary losses for which she is entitled to be fully compensated, because she suffered personal injuries due to the driver's negligence. The Plaintiff claims that because she suffered some physical injury, regardless of degree, her claims for relational economic loss are not claims for "pure" economic loss, and are recoverable. Even claims for relational pure economic loss ought not to be rejected according to the Plaintiff. In Canadian National Railway Co. v. Norsk Pacific Steamship, [1992] S.C.J. No. 40 (S.C.C.) the Supreme Court of Canada dismissed an appeal which held the steamship company liable for economic damages suffered by the railway company. The steamship company was responsible for negligently towing a barge which caused damage to a bridge owned by the Crown. The railway company had a contractual right to use the bridge and while it suffered no physical damage to its property or personal injury to its employees it suffered economic losses due to being unable to use the damaged bridge. [9] Justice McLachlin, as she then was, stated an incremental, case by case approach is preferable to having a comprehensive rule when it comes to consideration of recovery for pure economic losses. She stated at paragraph 253: 253 If this approach is followed, as it has been to date in Canada, new categories of cases will from time to time arise. It will not be certain whether economic loss can be recovered in these categories until the courts have pronounced on them. During this period, the law in a small area of negligence may be uncertain. Such uncertainty however is inherent in the common law generally. It is the price the common law pays for flexibility,

6 Page: 6 for the ability to adapt to a changing world. If past experience serves, it is a price we should willingly pay, provided the limits of uncertainty are kept within reasonable bounds. (emphasis added) [10] In several subsequent paragraphs, starting at paragraph 256, Justice McLachlin discusses how there must be sufficient proximity between the negligent act and the loss. 256 The matter may be put thus: before the law will impose liability there must be a connection between the defendant's conduct and plaintiff's loss which makes it just for the defendant to indemnify the plaintiff. In contract, the contractual relationship provides this link. In trust, it is the fiduciary obligation which establishes the necessary connection. In tort, the equivalent notion is proximity. Proximity may consist of various forms of closeness -- physical, circumstantial, causal or assumed -- which serve to identify the categories of cases in which liability lies. 257 Viewed thus, the concept of proximity may be seen as an umbrella, covering a number of disparate circumstances in which the relationship between the parties is so close that it is just and reasonable to permit recovery in tort. The complexity and diversity of the circumstances in which tort liability may arise defy identification of a single criterion capable of serving as the universal hallmark of liability. The meaning of "proximity" is to be found rather in viewing the circumstances in which it has been found to exist and determining whether the case at issue is similar enough to justify a similar finding. 258 In summary, it is my view that the authorities suggest that pure economic loss is prima facie recoverable where, in addition to negligence and foreseeable loss, there is sufficient proximity between the negligent act and the loss. Proximity is the controlling concept which avoids the spectre of unlimited liability. Proximity may be established by a variety of factors, depending on the nature of the case. To date, sufficient proximity has been found in the case of negligent misstatements where there is an undertaking and correlative reliance (Hedley Byrne); where there is a duty to warn (Rivtow); and where a statute imposes a responsibility on a municipality toward the owners and occupiers of land (Kamloops). But the categories are not closed. As more cases are decided, we can expect further definition on what factors give rise to liability for pure economic loss in particular categories of cases. In determining whether liability should be extended to a new situation, courts will have regard to the factors traditionally relevant to proximity

7 Page: 7 such as the relationship between the parties, physical propinquity, assumed or imposed obligations and close causal connection. And they will insist on sufficient special factors to avoid the imposition of indeterminate and unreasonable liability. The result will be a principled, yet flexible, approach to tort liability for pure economic loss. It will allow recovery where recovery is justified, while excluding indeterminate and inappropriate liability, and it will permit the coherent development of the law in accordance with the approach initiated in England by Hedley Byrne and followed in Canada in Rivtow, Kamloops and Hofstrand. 259 I add the following observations on proximity. The absolute exclusionary rule adopted in Stockton and affirmed in Murphy (subject to Hedley Byrne) can itself be seen as an indicator of proximity. Where there is physical injury or damage, one posits proximity on the ground that if one is close enough to someone or something to do physical damage to it, one is close enough to be held legally responsible for the consequences. Physical injury has the advantage of being a clear and simple indicator of proximity. The problem arises when it is taken as the only indicator of proximity. As the cases amply demonstrate, the necessary proximity to found legal liability fairly in tort may well arise in circumstances where there is no physical damage. 260 Viewed in this way, proximity may be seen as paralleling the requirement in civil law that damages be direct and certain. Proximity, like the requirement of directness, posits a close link between the negligent act and the resultant loss. Distant losses which arise from collateral relationships do not qualify for recovery. 261 In many of the cases discussed above, the judiciary has focused upon the relationship between the tortfeasor and the plaintiff as an indication of proximity, a focus closely related to the foreseeability analysis inherent to all negligence actions. In the classic case of Hedley Byrne, the reliance analysis focuses upon the connection between the party who made the negligent misstatement and the injured party, i.e., is that plaintiff a party that the tortfeasor ought reasonably to have foreseen would rely on his or her statement? The judgments below focused on the relationship between the tortfeasor Norsk and the plaintiff CN both within and outside their discussion of proximity. A more comprehensive, and I submit objective, consideration of proximity requires that the court review all of the factors connecting the negligent act with the loss; this includes not only the relationship between the parties but all forms of proximity -- physical, circumstantial, causal or assumed indicators of closeness. While it is impossible to define comprehensively

8 Page: 8 what will satisfy the requirements of proximity or directness, precision may be found as types of relationships or situations are defined in which the necessary closeness between negligence and loss exists. 262 While proximity is critical to establishing the right to recover pure economic loss in tort, it does not always indicate liability. It is a necessary but not necessarily sufficient condition of liability. Recognizing that proximity is itself concerned with policy, the approach adopted in Kamloops (paralleled by the second branch of Anns) requires the Court to consider the purposes served by permitting recovery as well as whether there are any residual policy considerations which call for a limitation on liability. This permits courts to reject liability for pure economic loss where indicated by policy reasons not taken into account in the proximity analysis.(emphasis added). [11] Referring to the evolving, case-by-case approach to claims for pure economic loss in which the facts of each case are critical to the result and there is no comprehensive rule that applies to all situations, the Plaintiff submits it is impossible for the Defendant to prove that it is "plain and obvious" that the Plaintiff has no chance of succeeding at trial with respect to her impugned allegations and claims. [12] The Plaintiff also relies on the case of Ordon Estate v. Grail, [1998] 3 S.C.R. 437, 1998 CanLII 771 (S.C.C.), stating the Supreme Court reformed the common law to allow claims for loss of guidance, care and companionship to be made by dependants of persons who were injured or killed by negligence. The decision in Ordon dealt with claims arising out of a number of boating accidents. The case principally involved interpretation of the Canada Shipping Act fatal accident provisions, and the application of maritime common law. That legislation allowed for "damages", but was silent on whether dependants could recover damages for loss of care, guidance, and companionship. The court recognized that losses of that nature were not traditionally recoverable under general common law principles. The main issue before the court was whether maritime common law should be updated in order to allow recovery of those losses. [13] The court considered the test for whether courts should reform common law, and at paragraph 78 cited earlier comments of Iacobucci J. in R. v. Salituro, [1991] 3 S.C.R. 654: Judges can and should adapt the common law to reflect the changing social, moral and economic fabric of the country. Judges should not be quick to perpetuate rules whose social

9 Page: 9 foundation has long since disappeared. Nonetheless, there are significant constraints on the power of the judiciary to change the law. As McLachlin J. indicated in Watkins, supra, [Watkins v. Olafson, [1989] 2 S.C.R. 750] in a constitutional democracy such as ours it is the legislature and not the courts which has the major responsibility for law reform; and for any changes to the law which may have complex ramifications, however necessary or desirable such changes may be, they should be left to the legislature. The judiciary should confine itself to those incremental changes which are necessary to keep the common law in step with the dynamic and evolving fabric of our society. [14] The court went on to conclude that it would serve the interests of fairness and justice to reform Canadian maritime law and allow for claims for loss of guidance, care and companionship, without resorting to provincial statutes. The Plaintiff argues her case is analogous to the decision in Ordon and she relies upon what she refers to as "the reformed common law right of a wife to claim damages for loss of the guidance, care and companionship of her husband, who was killed due to the negligence of someone other than the wife." [15] I agree with the submissions of the defendant that Ordon is distinguishable on several grounds. [16] Firstly, it is a maritime law case. The Supreme Court has shown a desire to modernize Canadian maritime law to ensure "it considers not only the social, moral and economic fabric of Canadian society, but also the fabric of the broader international community of maritime states." The court considered the ramifications any change, or lack of change, would have on Canada's treaty obligations, international relations, and the state of international maritime law. [17] Secondly, the court was defining "damages" within the context of the Canadian Shipping Act. They did so in a way that modernized maritime common law, having it conform to existing provincial legislation in areas of family law and fatal accidents. [18] Further, the changes made in Ordon were limited and it was explicitly stated that such changes could be made "without unforeseeable or complex ramifications." It was not intended to create or impose any new duty and the remedy that was extended had been "tried and tested". This was an incremental change of the kind contemplated by Iacobucci in Salituro. [19] Finally, Ordon was a case in which the dependants suffered loss of guidance, care and companionship because a family member died as a result of the

10 Page: 10 negligence of a third-party. It was not dealing with the circumstance in which the deceased negligently caused his own death. The duty that was owed by the thirdparty to the claimants in Ordon is well-established. In contrast, the notion that a person owes a legal duty to protect his own life, or refrain from negligently dying, is wholly unsupported by any Canadian authority and would constitute a radical departure from current common law. [20] In Cooper v. Hobart, 2001 SCC 79, [2001] 3 S.C.R. 537, the Supreme Court of Canada revisited the Anns test (from Anns v. Merton London Borough Council, [1978] A.C. 728 (H.L.)) and highlighted and honed the role of policy concerns in determining the scope of liability for negligence. Starting at paragraph 30, the Supreme Court set out a two-part test for determining whether a new duty of care should be recognized: 30 In brief compass, we suggest that at this stage in the evolution of the law, both in Canada and abroad, the Anns analysis is best understood as follows. At [page551] the first stage of the Anns test, two questions arise: (1) was the harm that occurred the reasonably foreseeable consequence of the defendant's act? and (2) are there reasons, notwithstanding the proximity between the parties established in the first part of this test, that tort liability should not be recognized here? The proximity analysis involved at the first stage of the Anns test focuses on factors arising from the relationship between the plaintiff and the defendant. These factors include questions of policy, in the broad sense of that word. If foreseeability and proximity are established at the first stage, a prima facie duty of care arises. At the second stage of the Anns test, the question still remains whether there are residual policy considerations outside the relationship of the parties that may negative the imposition of a duty of care. It may be, as the Privy Council suggests in Yuen Kun Yeu, that such considerations will not often prevail. However, we think it useful expressly to ask, before imposing a new duty of care, whether despite foreseeability and proximity of relationship, there are other policy reasons why the duty should not be imposed. 31 On the first branch of the Anns test, reasonable foreseeability of the harm must be supplemented by proximity. The question is what is meant by proximity. Two things may be said. The first is that "proximity" is generally used in the authorities to characterize the type of relationship in which a duty of care may arise. The second is that sufficiently proximate relationships are identified through the use of categories. The categories are not closed and new categories of negligence may be introduced. But generally, proximity is established by

11 Page: 11 reference to these categories. This provides certainty to the law of negligence, while still permitting it to evolve to meet the needs of new circumstances. 36 What then are the categories in which proximity has been recognized? First, of course, is the situation where the defendant's act foreseeably causes physical harm to the plaintiff or the plaintiff's property. This has been extended to nervous shock (see, for example, Alcock v. Chief Constable of the South Yorkshire Police, [1991] 4 All E.R. 907 (H.L.)). Yet other categories are liability for negligent misstatement: Hedley Byrne & Co. v. Heller & Partners Ltd., [1963] 2 All E.R. 575 (H.L.), and misfeasance in public office. A duty to warn of the risk of danger has been recognized: Rivtow Marine Ltd. v. Washington Iron Works, [1974] S.C.R Again, a municipality has been held to owe a duty to prospective purchasers of real estate to inspect housing developments without negligence: Anns, supra; Kamloops, supra. Similarly, governmental authorities who have undertaken a policy of road maintenance have been held to owe a duty of care to execute the maintenance in a non-negligent manner: Just v. British Columbia, [1989] 2 S.C.R. 1228, Swinamer v. Nova Scotia (Attorney General), [1994] 1 S.C.R. 445, etc. Relational economic loss (related to a contract's performance) may give rise to a tort duty of care in certain situations, as where the [page554] claimant has a possessory or proprietary interest in the property, the general average cases, and cases where the relationship between the claimant and the property owner constitutes a joint venture: Norsk, supra; Bow Valley Husky (Bermuda) Ltd. v. Saint John Shipbuilding Ltd., [1997] 3 S.C.R When a case falls within one of these situations or an analogous one and reasonable foreseeability is established, a prima facie duty of care may be posited. 37 This brings us to the second stage of the Anns test. As the majority of this Court held in Norsk, at p. 1155, residual policy considerations fall to be considered here. These are not concerned with the relationship between the parties, but with the effect of recognizing a duty of care on other legal obligations, the legal system and society more generally. Does the law already provide a remedy? Would recognition of the duty of care create the spectre of unlimited liability to an unlimited class? Are there other reasons of broad policy that suggest that the duty of care should not be recognized? Following this approach, this Court declined to find liability in Hercules Managements, supra, on the ground that to recognize a duty of care would raise the spectre of liability to an indeterminate class of people.

12 Page: The second step of Anns generally arises only in cases where the duty of care asserted does not fall within a recognized category of recovery. Where it does, we may be satisfied that there are no overriding policy considerations that would negative the duty of care. In this sense, we agree with the Privy Council in Yuen Kun Yeu that the second stage of Anns will seldom arise and that questions of liability will be determined primarily by reference to established and analogous categories of recovery. However, where a duty of care in a novel situation is alleged, as here, we believe it necessary to consider both steps of the Anns test as discussed above. This ensures that before a duty of care is imposed in a new situation, not only are foreseeability and relational proximity present, but there are no broader considerations that would make imposition of a duty of care unwise. [21] One Canadian case in which a similar issue was considered was Cady v. Anderson, 1992 CarswellBC 2387 (BCSC). The Plaintiff sought to recover damages for nervous shock she suffered after being in an accident in which her fiancé was killed. Her fiancé's negligence was the cause of the accident. Lamperson, J. stated, at paragraphs and 14: 11 It also seems that Taggart J.A., albeit in obiter,accepted the principle that a person cannot recover damages for psychiatric or emotional illness resulting from the death, injury or peril of the tortfeasor himself. Taggart J.A. appeared to accept that overriding limitation on the reasonable foreseeability test when he, at page 15, referred to the speech of Lord Scarman in McLoughlin v. O'Brian, [1983] 1 A.C. 410, at page 460, who among other things said: "... on the present state of the law, such a duty of care will not exist unless the reasonable foreseeable psychiatric injury was sustained as a result of the death, injury or peril of someone other than the person whose carelessness is alleged to have caused the injury... "(emphasis added). 12 It is of some significance, I think, that all the plaintiff's cases pertained to situations where the psychiatric harm came from observing the suffering of someone other than the tortfeasor.

13 Page: I have concluded that the plaintiff's case against Kenneth Fowler must fail, firstly, for the reason that he was the tortfeasor and, secondly, because there is no evidence that she suffers from a recognizable psychiatric or emotional illness. (emphasis added). [22] An extensive review of similar decisions in England, Australia, and elsewhere was undertaken by Cazalet J. in Greatorex v. Greatorex, [2000] 4 All ER 769 (High Court QB), [2000] EWHC 223 (QB). In Greatorex, the plaintiff was a firefighter who attended the scene of an accident in which his son had been injured. As a result, the father suffered from post-traumatic stress disorder and brought an action against his son for nervous shock. Cazalet J. rejected the father s claim on policy grounds, some of which were extracted from his international case review. An excerpt from Greatorex reflects some of the policy concerns that are evident in the current case where it is necessary to consider recognizing a new duty of care: Duty Owed by Victim of Self-Inflicted Injuries: Policy Considerations 66 Although it appears from the body of authority referred to above that the preponderance of opinion is unfavourable to the concept of a victim of self-inflicted injuries owing a duty of care to a third party not to cause him psychiatric harm in consequence of his injuries, there is no decision on the point which is binding upon this court. Accordingly the court, in the light of such guidance as has been given, including such assistance as may be gleaned from the Commonwealth decisions, must reach its own conclusion. It is at this stage that policy considerations come into play. 67 I observe, first, that since a claim for psychiatric illness suffered by a secondary victim in consequence of injury to a primary victim is not admitted by our law unless the three elements of the control mechanism are present, it follows that it will normally only be in cases where close family ties exist between the primary and secondary victim that the particular issue with which this case is concerned will arise. For reasons which will shortly appear, I regard that as a matter of significance.

14 Page: In the second place, the issue which I have to resolve raises, as it seems to me, a question which impinges upon a person's right of self-determination. Mr Eklund has drawn my attention to a decision of the German Bundesgerichtshof in a case reported at (1971) BGHZ 56, 163, where this problem was identified. A translation of an extract from that judgment (translated by Mr Tony Weir) which appears in A Comparative Introduction to the German Law of Torts by Professor Basil Markesinis (3rd ed., 1994, p.109), was produced to the court. That case concerned a wife's claim for damages for psychiatric injury suffered by her as a secondary victim of an accident in which her husband had died and which had been partly caused by his own negligence. I shall describe in a moment how the court dealt with the question of contribution between joint tortfeasors in that case. The immediately relevant passage in the judgment of the German court relates to the court's observation that if the death of the primary victim had been exclusively caused his own negligence, the claimant could not have recovered anything in respect of her injuries. The court reasoned that: "A person is under no legal duty, whatever the moral position may be, to look after his own life and limb simply in order to save his dependants from the likely psychical effects on them if he is killed or maimed: to impose such a legal duty, except in very peculiar cases, for instance, wherever a person commits suicide in a deliberately shocking manner, would be to restrict a person's self-determination in a manner inconsistent with our legal system" (p.113).(emphasis added) 69 Both counsel maintain that self-harming, whether by negligence or deliberately, would not be expected to give rise to any criminal liability. Mr Eklund, relying upon the opinion of the Bundesgerichtshof, argues that to impose the proposed liability for psychiatric harm caused to another through such acts would be to curtail the right of self-determination and the liberty of the individual. There is, of course, a duty not to cause foreseeable physical injury to another in such circumstances, but in my judgment to extend that duty so as to bring within its compass purely psychiatric injury would indeed be to create a significant further limitation upon an individual's freedom of action. That seems to me to be a powerful objection to the imposition of such a duty. 70 Mr Eklund maintains that there are strong policy reasons for holding that the victim of self-inflicted injury, whether caused

15 Page: 15 negligently or deliberately, should not owe a duty of care to someone who suffers psychiatric injury as a result of seeing him in an injured state. He postulates certain examples, in each of which A causes himself harm and B, who fulfils all the preconditions for classification as a secondary victim, suffers psychiatric injury as a result of seeing A in his injured state: (1) A commits suicide and the body is found by B, his son; (2) A negligently wounds himself with a kitchen knife in front of B, his wife; (3) A suffers extensive loss of blood as a result of a fall caused by his own negligence and is found by B, his mother. In all these circumstances, he submits, public policy ought to prevent B from suing A or A's estate if he or she suffers psychiatric injury in consequence of what he has seen. 71 His argument is as follows. The first Alcock control mechanism means that such claims must of necessity be between close relatives. Regrettably, the suffering of close relatives for selfinduced or natural reasons is an inherent part of family life. It is only when someone else inflicts the injuries that the incident is taken out of the category of everyday family life and into the law of tort. There seems to me to be force in this argument. Tragedy and misfortune may befall any family. Where the cause arises within the family there would, in my view, have to be good reason for further extending the law to provide a remedy in such a case. 72 That takes me to a related point, which in my view is of some importance. Home life may involve many instances of a family member causing himself injury through his own fault. Should the law allow one family member (B) to sue another family member (A) or his estate in respect of psychiatric illness suffered as a result of B either having been present when the injury was sustained or having come upon A in his injured state? Mr Mason argues that such claims will be rare, because such events will not normally cause psychiatric illness, and because the courts may be expected strictly to enforce the requirement that a secondary victim must show that the circumstances were such that a person of normal fortitude might foreseeably suffer psychiatric harm. That may be so, but experience shows that it is not only successful claimants who sue. To allow a cause of action in this type of situation is to open up the possibility of a particularly undesirable type of litigation within the family, involving questions of relative fault as between its members. Issues of contributory negligence could easily arise, not only where the self-inflicted harm is caused negligently, but also where it is caused intentionally. To take a simple example, A, while drunk, seriously injures himself. B, his wife, suffers nervous shock. What if A was drunk because B had unjustifiably threatened to leave him for another man or had fabricated an allegation of child sexual abuse against him? The possibilities are endless. In a case where A's self-harm is deliberate,

16 Page: 16 the possibility that B's claim may be met by a defence of contributory negligence, alleging that B's behaviour caused A to harm himself, is an alarming one. And that is without allowing for the further impact of possible Part 20 claims being brought against other members of the family. 73 I appreciate, of course, that one member of the family may already sue another family member in respect of physical injury caused by that other, so that in cases of physical injury there is already the potential for personal injury litigation within the family; but the fact that family members have the same right as others to make a claim for physical injury does not necessarily mean that they should have the right to make a claim for a different kind of harm in respect of which, because of the first Alcock control mechanism, others have no such right. Further, where a family member suffers psychiatric harm as a result of the selfinflicted injuries of another family member, the psychiatric illness in itself may well have an adverse effect upon family relationships which the law should be astute not to exacerbate by allowing litigation between those family members. In my judgment, to permit a cause of action for purely psychiatric injury in these circumstances would be potentially productive of acute family strife. 74 Mr Mason's best point in answer to these policy considerations, as it seems to me, derives from the passage in Lord Oliver's speech in Alcock (supra) at 418H to which I have already referred, where Lord Oliver referred to the anomaly that might arise where an accident, though not solely caused by the primary victim, has been materially contributed to by his negligence. Lord Oliver pointed to the unfair situation which would arise if a claimant were to recover damages in full for his or her traumatic injuries from a person who had in fact been responsible in only a minor degree whilst he in turn remained unable to recover any contribution from the person primarily responsible, since the latter's negligence vis-à - vis the claimant would not even have been tortious. [23] Cazalet J. went on to conclude the objections did not outweigh the abovenoted policy considerations. In particular, the imposition of liability when the defendant's failure to take care for his own safety causes harm to a claimant would violate self-determination and liberty of the defendant, and such a violation provides a "powerful objection to the imposition of such a duty".

17 Page: 17 [24] Recognizing a new duty requiring a person to protect his or her own life or safety in order to avoid causing harm to his or her family members, or other third parties, raises many unsettled questions and could have unforeseeable and complex ramifications. Would such claims be restricted to family members only? What about employers suffering the loss of key employees? Could family members sue because another failed to wear a seatbelt or bicycle helmet, or failed to look after his or her own health? [25] In the circumstances before the court, the Plaintiff wife claims she can recover from her husband's estate for relational economic loss because she suffered some physical injury as well as economic loss. In my view, it is illogical to suggest that if she escaped any physical injury, she would be barred from recovering for the loss of care, guidance and companionship, but if she so much as cut her finger or bruised her toe, she could recover. [26] I return now to consideration of actions available under the Fatal Accidents Act, R.S.P.E.I 1988, Cap. F-5. The FAA gives certain defined dependants of a deceased the right to claim damages against the person who has wrongfully caused the deceased's death. S. 2(1) of the FAA reads: 2. (1) Where the death of the deceased is caused by a wrongful act, the wrongdoer is liable to the dependants for damages under this Act notwithstanding the death of the deceased and that the death was caused in circumstances amounting to culpable homicide. [27] It is clear from reviewing various provisions of the Act that it was the intent of the Legislature that the "deceased" and the "wrongdoer" would be separate persons. Firstly, the words deceased, wrongdoer, and wrongful act are defined in s. 1(e), 1(m), and 1(n) respectively. A "wrongful act" means a failure to exercise reasonable skill or care "toward" the deceased. The use of the word "toward" contemplates a failure by a person, other than the deceased himself, which caused the death of the deceased. [28] It is of assistance as well to consider s. 5 of the Act:

18 Page: (1) For the purposes of this Act, if, at the time of the death of the deceased the wrongdoer is himself dead, the liability arising under this Act shall be conclusively deemed to have been subsisting against the wrongdoer before the death of the wrongdoer. [29] The rules of statutory interpretation do not permit us to assign the same meaning to different words, especially when the statute is perfectly clear and comprehensible upon ordinary reading. Straining to provide some unintended meaning is not appropriate. It was contemplated that the deceased and the wrongdoer are to be different persons. The Legislature has spoken. The FAA does not provide for recovery when the deceased is the author of his own misfortune. [30] Further, even if the deceased was able to recover notwithstanding that he is also the "wrongdoer", the FAA contains a clause that takes account of the deceased's contributory negligence. S. 8(3) reads: 8 (3) Where the death of the deceased is caused by, or partly by, the failure by the deceased to exercise reasonable skill and care for his own safety, the damages that otherwise would be awarded under this Act shall be reduced in proportion to the degree in which the court finds that the deceased's failure caused or contributed to his death. 1978, c.7, s.8 [31] As the Plaintiff s Amended Statement of Claim states, at paragraph 6, that, "The collision and resulting injuries and economic losses to Denise Hubley were caused solely as a result of the negligence of Philip," (emphasis added) any damages that would otherwise be awarded under the FAA, would be reduced to zero. [32] Should the court intervene and provide a remedy for the plaintiff in this case? At common law, there was no cause of action for wrongful death. This was confirmed by the Supreme Court of Canada in Ordon when it stated at paragraph 98: "The general common law rule barring recovery of damages in relation to the death of a third party therefore continues to bar the plaintiffs fatal accident claims in so far as they seek damages for loss of guidance, care and companionship: Baker v. Bolton (1808) 1 Camp. 493, 170 E.R (K.B.); Admiralty Commissioners v.

19 S.S. Amerika, [1917] A.C. 38. Page: 19 Continuing at paragraph 105 the Court said: 105 Dependants fatal accident claims are a creature of statute, beginning with Lord Campbells Act and continuing in the maritime law context with the Canada Shipping Act. In the absence of a statutory enactment permitting the claims, the old commonlaw bar to actions founded upon the death of a third party would apply: Baker v. Bolton, supra. As such, the class of eligible plaintiffs is to be found in the relevant statute and nowhere else. In the maritime context, s. 645 of the Canada Shipping Act sets out the list of eligible plaintiffs in clear terms: The list does not include siblings. The question is therefore whether it would be appropriate for the courts to reform non-statutory maritime law to allow for the bringing of a dependant s fatal accident claim by a sibling. 106 We agree with the Court of Appeal for Ontario that, although it may be desirable for Parliament to expand the list of eligible dependants under s. 645 of the Canada Shipping Act, it would be inappropriate for the courts to undertake this task unilaterally by reforming non-statutory maritime law in order to supplement the statutory provision. Through the Canada Shipping Act, Parliament has spoken as to the class of eligible plaintiffs in the case of a fatal accident. For this Court to reform the law to expand the class would be to effect a legislative and not a judicial change in the law.(emphasis added). [33] The Court declined to extend the class of eligible dependants in Ordon. [34] Lord Sumner rejected a claim that attempted to extend the remedies for wrongful death beyond the reach of the Lord Campbell s Act. The deceased's employer sought recovery of certain sums paid by it to the families of the deceased under statute. At p.52 of Admiralty Commissioners v. S.S. Amerika, [1917] A.C. 38, Lord Sumner, speaking of the Lord Campbell s Act said:

20 Page: 20 It did not deal with the case of master and servant as such, presumably because the Legislature found nothing in the commonlaw rule in this regard which called for reconsideration. I think the observation of Pigott B. in Osborn v. Gillett [L. R. 8 Ex. 93] was perfectly just: We are not at liberty to disregard the law thus established so long ago and expressly recognized by the Legislature, nor in effect to add by the decision of this Court another clause to Lord Campbell's Act. [35] The plaintiff in this case is seeking to recover losses not for injury directly to her, but for the consequences of injuries (death) which the deceased negligently inflicted upon himself. I find there is no common law duty for one to refrain from negligently causing his or her own death. Nor do I find there is any such statutory legal duty. In passing the FAA, the Legislature did not see fit to extend the remedies provided to allow the dependants of the deceased to make a claim against the deceased s estate on the basis that the deceased failed to exercise reasonable care and skill in protecting his own life or safety. The Legislature has set out certain limitations in the FAA and it is for the legislature and not the courts to extend the scope of any recovery possible under that Act. As Justice Iacobucci said in Salituro, supra, The judiciary should confine itself to those incremental changes which are necessary to keep the common-law in step with the dynamic and evolving fabric of our society. There were no compelling policy reasons presented for creating a new avenue of recovery. In fact, significant policy arguments were raised against the proposed imposition of liability, many of which were discussed by Justice Cazalet in Greatorex, supra. Those policy concerns include consideration of the impact on selfdetermination and liberty of the individual, as well as the significant or even radical potential impacts on normal relationships within a family. [36] Given that I find there is no common law or statutory legal duty of care, it is plain and obvious that the impugned clauses of the Statement of Claim disclose no reasonable cause of action and ought to be struck out. The Defendant s motion is granted with costs. September 7, 2010 J.