Court ruled in favour of mother who 'auditorily' witnessed daughter's vehicular accident

As there are issues which cannot be resolved without trial, the Ontario Superior Court has denied to summarily dismiss a damage suit of a mother who was an “auditory witness” – through a phone call – to her daughter’s vehicular accident.

In Labrosse v. Jones et. al., 2021 ONSC 8031, the claim arose from a motor vehicle accident in which the plaintiff’s daughter sustained physical injuries. After the collision, the plaintiff received a call from her daughter who was injured and in a state of panic. She listened on the phone while her daughter tried to exit the vehicle and attempted to deal with the defendant who was the driver of the at-fault vehicle.

In her claim for damages, the plaintiff alleged the following: First, she was present at the scene of the accident by means of a mobile phone. Second, the plaintiff has suffered psychological injuries due to the serious injuries inflicted on her daughter as a result of the negligence of the defendant. Third, her psychological injuries have limited her employment capacity.

The defendant moved for the summary judgment of the plaintiff’s claim. He argued that the plaintiff had no cause of action.

In its decision, the Superior Court sided with the plaintiff and dismissed the summary-judgment motion.

According to the court, in any negligence case, the plaintiff must establish that they fall within a class of individuals to whom the defendant owes a duty of care. If that is established, the court will consider whether the plaintiff can prove damages that are causally connected to a negligent act or omission and are not too remote. “The question the law of negligence asks is whether it is reasonably foreseeable that persons in a certain category are at risk such that the tortfeasor should have a duty to avoid harm.”

In this case, the court disagreed with the plaintiff’s argument that there is an established duty of care for users of public highways that would create liability to individuals contacted by accident victims. In fact, the court determined that the plaintiff was unable to point to any decision in which the court has recognized a duty of care to a person who is an “auditory witness” to an accident by virtue of receiving a phone call.

But just because a duty has not been recognized, the court noted, it may not be appropriate to strike out the action on a summary judgment motion and rule out the possibility of liability.

“The foreseeability analysis at either the duty-of-care stage or at the remoteness-of-damages stage in a novel case may require nuanced findings of fact that are genuine issues best resolved at trial,” the court said.

The court found that the evidence presented was sufficient to establish that there were facts which could lead to a finding of liability.  “The plaintiff did experience the aftermath of the accident over the phone. She did attempt to assist her daughter at the time. She did deal with the aftermath of the significant injuries, and it appears she has a diagnosis of significant post traumatic psychological injury,” the court said.

At trial, it is possible that a judge could find that the plaintiff falls within a class of individuals to whom the defendant owed a duty of care or the plaintiff’s injuries could be found to be factually and legally caused by the accident, the court said.

“There are several genuine issues to be adjudicated and they cannot appropriately be resolved on the material now available.”