Waivers: signing your life away!

At some point in your life, you have probably tried one of the following activities: skiing, bungee jumping, zip-lining, hand-gliding, river rafting, motorcycle riding (in a class), fitness training (in a program), or martial arts training (in a class).

If you’ve done these activities, you have probably also signed a waiver, which is a document relinquishing your right to sue the company if you suffer injury (even catastrophic injury) caused by the company’s failure to look after your safety.

Some people think that waivers are worth about as much as toilet paper. But, that couldn’t be further from the truth.

Consider this real world example: Loychuk v. Cougar Mountain Adventures Ltd., 2012 BCCA 122.

In August, 2007, two women went on a zip-line tour operated by Cougar Mountain Adventures Ltd., located at Whistler, BC.

Zip-lining involves being strapped into a harness and trolley and proceeding down a line from a higher to a lower elevation. Only one participate can travel on the line at one time (to avoid mid-air collisions between participants). A zip-tour guide is stationed at both the higher and lower elevation platforms. The guides communicate with each other via walkie-talkies to inform the other when it is safe for a participant to proceed down the line (ensuring the earlier participant has been safely removed from the line).

The rides at Whistler were over 1,500 feet long, 200 feet high, and boasted a 200 foot vertical drop. Customers could reach speeds of 100 km/hour.

One of the women was told to go down the line (by the guide). However, the other woman was still suspended on the line (and had not yet cleared the way). The women then collided with each other on the line, causing injury to both women.

The mid-air collision was entirely caused by a miscommunication between the tour guides and the only defence to Cougar Mountain was that both women, prior to riding the zip-line, signed a waiver releasing Cougar Mountain from liability.

In court, the waiver was found to be a complete defence and, despite the negligence of the guides/company, the women were not entitled to any money from Cougar Mountain.

For further illustration, here is a heinous example of when a waiver could be used a defence:

A bungee jump company knows that it should replace its bungee cords every five years; otherwise, the cords could break. But, each cable costs $50,000.00. So, instead of replacing the cable every five years, the company decides to use the cable for six years, saving some money. Now, imagine that the cord breaks and the customer falls, rendering him/her a quadriplegic (or worse).

Clearly, the company is negligent. And, without the wavier, the customer could have sued the company for pain and suffering, loss of income, and medical expenses (both past and future). But, with the waiver, the bungee company escapes being sued and, as a result, the injured customer will rely on social services for the rest of his/her life, costing taxpayers a pile of money.

Other jurisdictions don’t give such power to waivers. The United Kingdom government created the Unfair Contract Terms Act, which doesn’t allow people/companies to rely on waivers when they cause death or injury from their negligence (see section 2). Some states in America have similar law. That seems reasonable, right?

It’s not reasonable, though, that sports providers/companies are able to escape liability when they completely ‘screw up’ in keeping their customers safe.

So, how can we change this? Well, we need to pressure the government to create a law that limits the ability of companies to rely on waivers. And we need to do this now – and not wait until the next tragedy: woman falls 300 meters to her death in hand-gliding incident.

If companies were held (financially) responsible for their negligence, then you can bet that safety conditions would improve.

Lastly, I applaud two courageous Vancouver lawyers, Mr. J. Scott Stanley and Mr. Kevin Gourlay, for arguing for public safety in Loychuk v. Cougar Mountain Adventures Ltd. and for all their efforts to shine the light on the unfairness that currently exists in this area of law. Their efforts, which include providing other lawyers with research papers on this issue, represent another reason why lawyers deserve a better reputation.

**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.

Originally posted on Castanet.net on October 30, 2012: Waivers: signing your life away!

Doctors disclosing own health issues

Everyone has gone to a doctor for something. And almost everyone has gone to a doctor for some sort of procedure, whether only minor stitches or a major surgery.

When performing a procedure on a patient, a doctor must get that patient’s consent. So, what does that mean? Well, consent in this context is very tricky…

Without going into too much detail, the patient has to consent to the procedure voluntarily (i.e. by free will and without any pressure). The patient must also have the capacity to actually give consent (i.e. not be suffering from some sort of mental disability). And, the consent must be informed, meaning the doctor must tell the patient several things, such as the risks involved.

If there was no consent, the doctor could be sued.

This issue of INFORMED consent is the topic of this column, as it is likely the most important issue for most people.

So, in order for the patient to be INFORMED, what does the doctor have to tell the patient?

Put simply, the doctor is required to disclose the answers to specific questions, the nature and gravity of the procedure, and any risks that are probable (likely) to occur. The doctor must also tell the patient about any serious risks (such as death or paralysis) that are merely a possibility (and have a remote chance of occurring).

Doctors are also required to disclose information that he/she knows would influence the patient’s choice to consent to the procedure.

Clearly, doctors have a broad duty for disclosure.

But, are doctors required to disclose their personal information (like their own health conditions) to patients? Short answer: no (with shades of grey).

Generally, doctors don’t have to disclose their own health issues; but, doctors may have to disclose their medical conditions if their conditions pose a risk (to the patient’s health) that is likely to occur or if their conditions pose a risk that could occur (but is unlikely) and would result in serious consequences to the patient, like death.

Consider Halkyard v. Mathew, 2001 ABCA 67. In that case, a woman died following a hysterectomy performed by the defendant physician, who had epilepsy. After the woman’s death, the husband sued the doctor and claimed that his wife had not given informed consent. In other words, the husband was arguing that his wife would not have consented to the surgery had she known about the doctor’s epileptic condition. Keep in mind that the doctor did not suffer an epileptic seizure during the operation; his condition did not impact the surgery (at all).

In this case, the court decided that the doctor did not have to disclose the epileptic condition as the condition was controlled by medication.

In a similar situation (but involving doctor inexperience rather than health), the court in Hopp v. Lepp, [1980] 2 SCR 192 found that the physician was under no obligation to disclose that it was his first such surgery after becoming certified. As you can imagine, this was great for young doctors…

Like with fist fights and sexual relationships, which were both discussed in previous columns, consent is an important and tricky topic (when dealing with your doctor).

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.

Originally posted on Castanet.net on October 2, 2012: Doctors disclosing own health issues.

What should you do after a car crash?

On request, I am providing you with some tips on what to do after being in a car crash.

Car crashes are very frequent. You have likely been in one or know someone who has. I have been the victim of two crashes myself.

According to ICBC stats, a crash occurs in Kelowna approximately every hour and 2,700 people are injured in Kelowna car crashes every year.

Car crashes are totally avoidable, which is why I refer to them as ‘crashes’ (and NOT accidents).

Now, at this point, I could tell you to not drive aggressively, to slow down, and to not tailgate. But, everyone knows that already, right? (I wish that were true…) But, that’s not the point of this article.

Instead, this article is intended to give you some tips on what to do immediately after being the victim of a car crash (to protect your interests). This applies whether or not you are an occupant of a vehicle, a cyclist, or a pedestrian.

First, get the names, driver’s licence numbers, insurance information, and contact information (addresses and phone numbers) of all motorists involved in the crash.

Also, pay attention (and take note) of the behaviour/actions of the other motorists involved in the crash. Does the other driver look tired? Do they look impaired (by drugs or alcohol)? Were they wearing a seatbelt or wearing glasses?

These details could be CRUCIAL.

And don’t play games at the crash site – ensure that you identify yourself following the crash – it is a legal requirement.

Next, ensure that you get the names and contact information of any witnesses at the crash. This is VERY important – and is typically overlooked by most people. Taking two minutes to get witness information can save you A LOT of grief later.

Next, on a notepad, sketch the accident scene, indicating the direction of travel of other vehicles and the location of the vehicles after the crash. Then make a note of the traffic and weather conditions.

And remember that a picture is worth a 1000 words. Everyone carries a camera now (on their cell phone), so ensure that you take photographs of the crash scene and the other vehicles involved.

Also, report the crash to your insurance company and the police (assuming that police didn’t attend the scene).

Regarding your insurance, you should know that there are a number of time deadlines that exist (i.e. for reporting the crash or for providing a statement). If you don’t comply with those deadlines, you might not be entitled to particular benefits. So, it is important that you PROMPTLY report the crash. See section 97 of the Insurance (Vehicle) Regulation (B.C. Reg. 447/83).

While reporting your crash, though, you should be careful in providing a ‘statement’ on the details of how and why the crash occurred. Such statements can come back to ‘haunt’ you. For instance, when providing a statement, you might leave out an important detail or you may innocently recall something that wasn’t true. The insurance company (ICBC) might then try to rely on that statement/detail to argue that you were ‘at fault’ (either totally or partially) in the crash, thereby reducing the amount of money that they have to pay you.

So, what can you do? Put simply: speak to a lawyer PROMPTLY after the crash. The lawyer can help you prepare your statement and can help you navigate through all the other hurdles that exist in a personal injury file (that I don’t have room to discuss here).

With all this said, the best information that I can provide to any motorist is the following: be careful on the road.

**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.

Originally posted on Castanet.net on August 28, 2012: What to do after a car crash?

Be afraid: No-fault insurance & ICBC

There’s been some big news with ICBC lately: CEO Jon Schubert will be resigning and nearly 200 positions will be cut in the next two years.

That big news got me thinking about auto insurance and I want to share some information with you.

In B.C., there is a real danger that our auto insurance could change – for the worse – sometime in the future. The change is ‘no-fault auto insurance’.

So, what is ‘no-fault auto insurance’? I’ll explain…

Throughout North America, there are several different models of auto insurance. Those models can be divided into two systems:

  1. a liability/tort system; and
  2. a no-fault system.

The liability/tort system (which is what we have in BC) allows an innocent person to go to court and sue a reckless driver for losses (such as past and future income loss, past and future medical expenses, and pain and suffering) that the innocent party suffered in a motor vehicle crash.

In the no-fault system, innocent victims of car crashes cannot go to court and cannot sue for their losses. The reckless party is not brought to court. Instead, the innocent party is only entitled to pre-determined benefits that are decided BY THE INSURANCE COMPANY. It is a system similar to what occurs in Workers Compensation Board claims.

Quite frankly, no-fault auto insurance strips innocent victims of their right to sue and leaves them with whatever the insurance company is offering to pay, period. So, with that said, why have some provinces/states even experimented with no-fault auto insurance?

Well, insurance companies argue that no-fault insurance reduces premiums, making auto insurance cheaper. The premiums are supposed to be cheaper because the benefits that are paid out to innocent victims are significantly lower. Consider that in Ontario, when no-fault was introduced, benefits that were paid out to injured victims of car crashes were reduced by almost 50%.

So, with less (than fair) benefits being paid out, do premiums actually decrease? Are the savings actually passed on to the public? Answer: ABSOLUTELY NOT. In almost every province or state where no-fault insurance has been introduced, the premiums have (hugely) escalated.

Other than increased prices, no-fault insurance leads to an increase in crashes. Why does this happen? Well, under no-fault, reckless drivers are not sued and, as a result, are not held accountable for their actions. In Quebec, when no-fault insurance was introduced, fatal car crashes increased by nearly 10%.

Despite these negative effects, there was a battle in the mid-1990s in which the provincial government (to ICBC’s desire) was moving to change our auto insurance system. Fortunately, though, the change did not occur – there was a lot of opposition (as you can imagine).

Other provinces weren’t so lucky… Ontario introduced a no-fault system in the 1990s and, after seeing its failures, has reverted back to the tort system.

According to the Coalition Against No-Fault in British Columbia, there are over 200 organizations that are against no-fault insurance in B.C. Such groups include Mothers Against Drunk Driving, various seniors’ groups and student unions, the British Columbia Brain Injury Society, and the B.C. Trial Lawyers Association (who are keenly aware of your rights).

I wish I could go on, but this topic is HUGE – it is impossible to fully describe this issue in a short column.

But, in closing, I will say this: ICBC and other insurance companies are keenly aware that the term ‘no-fault’ conjures up negative feelings with consumers and with the public. So, if it comes up in the future (and hopefully it never will), look for insurance companies to use terms (for proposed policies) that conjure up ‘warmer, fuzzier’ feelings about such no-fault insurance.

BUT, don’t be fooled – you’ll still be paying more for less.

**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.

Originally posted on Castanet.net on August 21, 2012: Be afraid: No-fault insurance and ICBC.

McDonald’s and its hot coffee

Few cases are as infamous (and as misreported) as Liebeck v. McDonald’s Restaurants, P.T.S. Inc., 1995 WL 360309 (N.M. Dist.)). It has gained international recognition and is regularly cited as a symbol for frivolous litigation.

This column is intended to ‘clear up’ the misconceptions that surround this case.

Here are the facts:

  • In 1992, Ms. Stella Liebeck, a 79-year-old woman, ordered a cup of coffee from the drive-through window of a McDonald’s restaurant located in Albuquerque, New Mexico.
  • Ms. Liebeck was a passenger in a vehicle driven by her grandson.
  • After receiving the coffee, her grandson drove forward and parked, allowing Ms. Liebeck to add sugar and cream.
  • She placed the coffee between her knees and, in the process, she spilled the entire coffee on her lap.
  • She was wearing sweatpants, which absorbed the coffee and held it against her skin.
  • Ms. Liebeck scalded her thighs, buttocks, and genital and groin area.
  • She was taken to the hospital and suffered third degree burns to six percent of her skin.
  • She reportedly stayed in the hospital for over one week, underwent skin grafting, lost nearly 20% of her body weight, and suffered from two further years of medical treatment.

Despite her injuries, I can already hear skepticism: “Coffee is supposed to be served hot!” Yes, that’s true. But, we can agree that there are limits on how hot coffee should be served, right? Stores need to ensure that their product is safe; to do otherwise would place customers at risk. So, how hot was the coffee? Was it actually dangerous?

At home, coffee is often served at approximately 140°F (60°C). At trial, it was found that McDonald’s restaurants were serving coffee at 185°F (85°C), plus or minus 5°F, capable of causing serious, third-degree burns in under ten seconds.

McDonald’s cited the following two reasons for serving its hot coffee:

  • Coffee purchased through the drive-through window was typically sold to commuters who drove a distance with the coffee. As a result, the higher temperature would keep the coffee hot during the trip.
  • Keeping the coffee at the high temperature promoted optimal taste.

Some speculate that the higher temperature was intended for a profit motive, such as slowing consumption, thereby reducing the demand for free refills.

So, did Ms. Liebeck just want to get rich? Ms. Liebeck initially tried to settle the matter for $20,000.00; she had not retained a lawyer and requested very minimal compensation for her medical expenses and other losses. However, McDonald’s was only willing to offer $800.00, causing Ms. Liebeck to retain a lawyer. Before trial, there were repeated attempts to settle, requesting compensation for losses, amounts that were less than what was awarded at trial. However, all attempts were unsuccessful.

So, how much money was Ms. Liebeck awarded? A jury, who was composed of community members and who heard from medical experts, awarded $200,000.00 in compensatory damages, compensating Ms. Liebeck for her medical expenses and the significant impact/limitations that she had to endure. However, this amount was reduced to $160,000.00 in recognition that she was also responsible for her injuries.

In addition, the jury awarded $2.7 million in punitive damages. Punitive damages are NOT intended to compensate an injured person; instead, they are intended to punish the defendant and deter it (and other potential defendants) from committing similar wrongful acts in the future. McDonald’s put consumer safety at risk; the judge called its conduct willful, callous, and reckless.

Now, $2.7 million is a lot of money, right? But, the award needs to be high if you want a multi-billion dollar company to take notice. The jury’s intention behind the particular amount was reportedly to penalize McDonald’s for one or two days’ worth of coffee revenues, which, at the time, was approximately $1.35 million per day. However, in the end, the punitive damages award didn’t stick; the trial judge reduced the amount to $480,000.00, three times the compensatory award.

In total, at the end of the trial, Ms. Liebeck was awarded $640,000.00. However, McDonald’s appealed the decision and, before the appeal was decided, the parties settled for an undisclosed amount, reportedly much less than the trial award.

With coffee so hot, this couldn’t have been the first claim against McDonald’s, right? It was found that, between 1982 and 1992, McDonald’s received more than 700 claims of coffee burns, many similar to Ms. Liebeck’s, and McDonald’s reportedly paid out large dollars to settle these claims. At trial, the quality control manager for McDonald’s testified that the number of incidents was insufficient to evaluate its practice; he also stated that they had more pressing issues to be concerned about.

So, Ms. Liebeck won, right? Wrong. While Ms. Liebeck got some money and coffee is now served at lower temperatures, Ms. Liebeck’s injuries and efforts have been mocked and the defendant’s conduct has been trivialized.

My suggestion to those who read about cases in the media: do your own research; if it sounds too good, bizarre, or depressing to be true, it probably is.

**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. 

Originally posted on Castanet.net on January 17, 2012: McDonald’s and its hot coffee.

Sue the school for bullying?

Winter vacation is over and children are back in school. For many children, the return to school is less than enjoyable as bullying is common and efforts to prevent it have seemingly fallen short of success.

Bullying can take many forms; it can be physical, analogous to criminal assault, or it can be verbal or mental. Over 30% of students have been bullied and more than 70% of gay, bisexual, lesbian, or transsexual students have felt unsafe while at school. Victims of bullying are more likely to suffer headache/stomach problems, have lower grades, have a poor attitude towards school, and have greater absenteeism. Also, victims of bullying are 2-9 times more likely to commit suicide, the 3rd leading cause of death among youths. Suicide from bullying has been termed, “bullycide” and at least half of youth suicides are related to bullying. Some victims of bullying also develop learned helplessness, post-traumatic stress disorder, depression, fatigue, eating disorders, and insomnia.


In a 2001/2002 World Health Organization survey, Canada ranked 26th and 27th out of 35 countries on measures of bullying and victimization, respectively. In a 1993/1994 study, Canada’s rank was relatively higher, suggesting that other countries have improved and addressed bullying more effectively than Canada.

Obviously, bullying is a problem in Canadian schools.

So, how do we fix it? Well, changes to legislation, to school/teacher procedures, and to community/parental resources may be effective. But, aside for those strategies, consider that litigation/lawsuits (i.e. holding school authorities, like the school or school board, civilly accountable for negligence) would also be effective. Please, hear me out…

At present, some parents spend years going through the prescribed channels, meeting with principals, school board officials, and police, hoping to protect their children, but are unsuccessful. For a few of those parents, taking the matter to court is the next step – a courageous move, knowing that they will be subject to criticism by those who do not understand their plight to protect their children.

Put simply, the legal argument is as follows: there is a legal obligation that children receive schooling and, if children attend a public school, school authorities owe a duty to keep those children safe and protected against preventable and foreseeable harm, including harm from other children. If school authorities fail in keeping children safe from preventable and foreseeable harm, then the school authorities should be held accountable. Seems reasonable, right?

It is not suggested that school authorities be found liable for an isolated incident in which a student assaults another with no warning signs – such an occurrence would be unforeseeable and unpreventable. But, consider a child being repeatedly assaulted and/or harassed, often directly in front of a school’s employee, with the bully never being suspended or expelled. Also, consider that, as a result of the bullying, the victimized child suffers physical and/or mental harm. Such occurrences are preventable and, in such circumstances, the school authorities should be held accountable.

Now, what is a victimized child entitled to? Just as it is with other litigation, plaintiffs are only entitled to fair compensation; they are only entitled to recover their losses (contrary to some public sentiment). Compensation for a victimized child could include the cost of necessary counselling, medication (for mental, stomach, or headache issues), tutoring, or transportation to a different school. The child could also receive compensation for having to endure humiliation and the feeling of helplessness. Also, depending on the level of harm and the interruption to their education/schooling (resulting in lost years), the victimized child may also receive compensation for loss of future income.

Okay, so litigation will compensate victimized children for their losses. But, how will it prevent bullying? Well, the answer is this: self-interest. Litigation forces school authorities to be fiscally motivated to better prevent and detect bullying; the school authorities would view the bully’s behaviour as an unnecessary and preventable cost. As well, taxpayers who see the connection between their tax dollars and litigation will exert external pressure on school authorities to prevent bullying.

As a write this, I can already hear skepticism that litigation will prevent bullying. However, it should be remembered that the law shapes behaviour. For example, consider whether all department stores or gas stations would continue to spend large dollars to keep their parking lots free from ice and snow if there was no risk of litigation (from resulting injury). Also, consider whether some people would choose not to commit a criminal act, like impaired driving, if there was no risk of being held criminally liable. Like it or not, the law regularly influences behaviour (and benefits the common good).

Also consider this: you attend a doctor, a lawyer, or a department store and you suffer loss/harm because of their negligence/wrongdoing. You would expect them to be held accountable and compensate you for your losses, right? Why should it be any different for children when attending school?

In conclusion, bullying is not acceptable and it is not a rite of passage. In our schools, some children are committing criminal acts. If it takes litigation to stop this behaviour, then so be it.

**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.

Originally posted on Castanet.net on January 10, 2012: Bullies, schools, and lawsuits.

Hit and runs: know your rights

A short time ago, I wrote a column giving you some tips about what to do after being in a car crash. Those tips included 1) taking photographs of the crash; 2) getting witness names and contact information; and 3) getting the contact information of the other drivers involved in the crash.

BUT, what happens if you can’t get the contact information of the driver who caused the crash? What happens if you suffered injuries and the at-fault driver “just drove away”? In other words, what if you are involved in a “HIT AND RUN”?

Well, this is the subject of this week’s column.


Here is the law: if you suffer some injuries at the hands of an unidentified motorist, then you may be entitled to some money. “Money” can include an award for “pain and suffering”, for medical treatment, and/or for loss of income. See section 24 of the Insurance (Vehicle) Act, R.S.B.C. 1996, c 231.

So, how does this work? Well, you obviously can’t directly sue the driver who caused the crash (because they fled the scene, right?). But, you can sue ICBC (so you are not totally out of luck).

But, in order to actually get some money from ICBC, you have to jump over several hurdles.

Among those hurdles, you have to show that you don’t know (and can’t get) the identity of the driver/owner of the other vehicle. This is typically the hardest hurdle to jump over…

So, what does this mean? Well, at a crash scene, you need to do your best to learn the identity of the other driver.

But, let’s assume that the other driver flees the scene right away or you were too injured to get the information. Well, if that occurs, you STILL need to take some serious efforts to learn the identity of the negligent driver. These “efforts” include things like promptly reporting the crash to police and ICBC, canvassing the neighbourhood where the crash occurred, and posting notices/signs at the crash site (pleading for witnesses to come forward). It is common for people to make “insufficient” efforts and have their claims denied.

Another big hurdle is that you need to report the crash to ICBC as soon as you can (and no later than 6 months, at the latest). This allows ICBC to protect itself and “investigate” into the crash, trying to find the identity of the driver.

Another big hurdle is that your credibility needs to be very, VERY good. This sounds easier than it is…

Credibility is a big factor in “hit and run” cases. Often, the only evidence of a “hit and run” is your own words. So, as you can imagine, it is problematic if there are discrepancies in your evidence (i.e. in your statements). For example, if your statement to police is different from your statement to ICBC, then you can have credibility problems. So, be very careful with your words and be very honest.

Now, how much are you entitled to? Well, assuming you can jump over all the hurdles (and there are several), you could receive as much as $200,000.00 for your losses. This may sound like a HUGE amount; but, it may not be (depending on your injuries)…

Lastly, if you are injured in a “hit and run”, I recommend getting some legal advice. There are many hurdles to jump over. And, if you miss one, you could be very sorry later.

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.

Originally posted on Castanet.net on February 12, 2013: Hit and runs: know your rights.

Seeing dead people (and lawsuits!)

In your time on Earth, you have probably witnessed some horrific 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, you can’t 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 drunk 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 crash or other horrific scene or site, keep 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.

Originally posted on Castanet.net on February 26, 2013: Seeing dead people.