While the spotlight often falls on the individuals directly affected by an incident in a personal injury claim, an equally significant aspect of this legal terrain involves bystander claims. In certain circumstances, rights and remedies are available to those who witness traumatic events and suffer psychological injuries as a result, such as a fatal car accident. In Canada, bystander claims can offer an avenue to individuals whose lives are altered by witnessing catastrophic and distressing incidents.

In a recent decision from the Superior Court of Ontario, the defendant brought a motion asking the Court to strike the bystander plaintiff’s claim for damages he allegedly sustained as a result of witnessing a fatal car accident on the basis that he disclosed no reasonable cause of action. 

Bystander seeks personal injury damages for mental and physical injuries

In the case of Bustin v. Quaranto, the plaintiff commenced an action for personal injury damages as a result of the physical and mental injuries he sustained after witnessing a double-fatality motor vehicle accident. Although he was not directly involved in the accident, nor did he have any relationship with the individuals involved, he claimed that, as a result of the defendant’s negligence, he sustained various personal injuries. 

In response, the defendant brought a motion before the Ontario Superior Court of Justice to strike the plaintiff’s statement of claim “for disclosing no reasonable cause of action.” 

Bystander witnesses double-fatality accident

On October 13, 2019, a fatal two-vehicle accident occurred in Vaughan. The first vehicle was driven by the defendant and had no passengers, while the second vehicle had two occupants, both of whom were fatally injured in the accident. 

The plaintiff witnessed the fatal accident and subsequently commenced a personal injury claim against the defendant. In the statement of claim, the plaintiff claimed, among other things, that:

  • at the time of the accident, he was attending a Thanksgiving gathering at his aunt’s home which was near-by to the accident location; 
  • while standing outside the front of her home, 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”; and
  • he suffered physical and mental injuries akin to being struck by the defendant’s vehicle in the accident. 

Defendant pleads that plaintiff does not have a cause of action

The defendant filed a statement of defence in response, pleading that the plaintiff had no cause of action because:

  • The defendant did not owe the plaintiff a duty of care; 
  • The injuries the plaintiff claimed he sustained were not reasonably foreseeable consequences of the defendant’s actions; 
  • The plaintiff was not directly involved in the collision; and
  • If the defendant owed the plaintiff a duty of care in these circumstances, it would create issues of claimant indeterminacy. 

As a result, the defendant brought a motion asking the Court to strike the plaintiff’s statement of claim for disclosing no reasonable cause of action pursuant to Rule 21.01(1)(b) of the Rules of Civil Procedure. 

The family members of the deceased persons in the second vehicle commenced a separate action against the defendant and another defendant concerning the fatal car accident that occurred. 

Court will only strike a claim if it has no reasonable prospect of success

Rule 21.01(1) and (2) state that a party may move before a judge to strike a pleading on the basis that it discloses no reasonable cause of action or defence. The outcome of such a motion is decided on the fact of the pleadings alone, with the facts pleaded in the statement of claim “assumed to be true unless they are manifest incapable of being proven.” 

The Court acknowledged that the moving party has a stringent burden to establish, as a claim will only be struck if it is “plain and obvious” that there is no reasonable prospect of success. However, if there is a reasonable prospect of success, a claim should “proceed to trial despite the novelty of its cause of action.”

Plaintiff has “arguable basis” to claim defendant owed him duty of care

The key issue before the Court was whether it was “plain and obvious” that the plaintiff’s claim “has no reasonable prospect of success and is certain to fail.” To succeed in a negligence claim, it must be proven that a duty of care existed between the parties, the standard of care was breached, which resulted in compensable damages, and there was causation. 

Based on a review of Canadian jurisprudence, the Court found that the plaintiff has an “arguable basis to claim that the defendant owed him a duty of care.” Citing the English case of Alcock v. Chief Constable of Yorkshire Police, which Canadian courts frequently cite, there is a recognized duty of care towards bystanders and others who are physically present at an accident and suffer nervous shock. Although this case noted that a bystander who has no relationship with the victims may be difficult to prove, there is still a reasonable foreseeability that a bystander may suffer psychological injury when they are close to a “horrific” catastrophe. 

In the plaintiff’s statement of claim, he noted that he was close enough to witness and hear the accident as it happened, which brought him within the physical proximity required under Alcock.

Court declines to strike plaintiff’s statement of claim

Although the plaintiff’s claim was “novel,” the Court recognized that a trial would be necessary to assess the duty of care and its application to the plaintiff. The Court stated that:

“…any uncertainty or novelty arising from unsettled jurisprudence should not cause the claim to be struck. On a motion to strike, the court should adopt a generous approach that errs on the side of allowing a novel but arguable claim to proceed to trial.”

The Court’s view was “not plain and obvious that the Plaintiff’s claim has no reasonable prospect of success.” The Court was satisfied that the plaintiff had established a “sufficient basis that could result in a finding of liability by the defendant.” Accordingly, the Court dismissed the defendant’s motion and declined to strike the plaintiff’s statement of claim.

What Bystanders Should Know 

This case highlights that courts will not necessarily strike an unrelated bystander’s statement of claim for personal injury damages simply because they were not involved in the accident. Aside from car accidents, there are other instances which may rise to the level of severity which may trigger a defendant’s potential duty of care to an unrelated bystander. As such, each claim will be considered on its unique facts. 

Contact the Personal Injury Lawyers at Tierney Stauffer LLP for Trusted Advice on Bystander Personal Injury Claims 

Whether you are directly involved in a car accident or you sustained psychological injuries as a result of witnessing a catastrophic event, it is important to speak with an experienced personal injury lawyer who can advise you on the merits of your potential claim. 

At Tierney Stauffer LLP, our trusted and knowledgeable personal injury lawyers will help you and your loved ones navigate the claims process to help you recover the compensation you deserve to help you move on. To speak with a member of our personal injury team regarding your potential injury claim, contact us at 1-888-799-8057 or reach out to us online.


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