Court Rules in Favour of ‘Auditory Witness’ - Novel Issues Warrant Trial - Labrosse v. Jones et. al., 2021 ONSC 8031 (CanLII)

January 04, 2022, Kitchener, Ontario

Posted by: Robert Deutschmann, Personal Injury Lawyer

Date of Decision: December 6, 2021

Heard Before: Regional Senior Justice Calum MacLeod

SUMMARY JUDGEMENT MOTION: reasonableness of determination based on affidavit evidence; test for summary judgement not met; novel claim not suitable to be weeded out under Rule 20; test for law of negligence; trial warranted

EM sustained injuries in a significant car accident on September 12, 2014. The plaintiff was her mother, the owner of the car, and who was not in the vehicle at the time of the accident.

EM was driving when she stopped at a red light. She called her mother immediately before the collision and then again immediately after. During the second phone call, EM was injured and trapped in the car as the door would not open. She was in a state of panic.

EM’s mother listened to her daughter on the phone in distress and in an incoherent state. According to the plaintiff, the situation was exacerbated by the threatening and belligerent behaviour of the other driver who was attempting to prevent EM from contacting the police.

The claim by the plaintiff is for the psychological pain, suffering and emotional anguish she suffered as a parent while on the phone with her daughter during a car accident in which the daughter was seriously injured. The plaintiff is diagnosed with ‘other trauma and stressor related disorder’ and seeks to sue in her own right based on “psychological injuries she sustained have now limited her employment capacity, effectiveness in social activities and performance of daily living activities”.

The plaintiff alleges that:

1. She was present at the scene using a mobile phone
2. She suffered psychological injuries due to the serious injuries inflicted on her daughter due to the negligence of the other driver (defendant)
3. Her employment capacity has been limited due to the psychological injuries.

The defendant has moved of summary judgement arguing the plaintiff has no cause of action.

During trial, the court established that in any negligence case the plaintiff must establish that they are owed a duty of care by the defendant. Once this is established, the court can consider the plaintiff’s claim and whether they can prove their damages are connected to the defendant’s negligence or omission. Justice Calum MacLeod stated, “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.”

The defendant relied upon the defence that there is an established duty of care for users of public highways the would create liability to individuals who are contacted by accident victims. The defendant was unable to support their position with any court case referring to an auditory witness via phone call.

Upon review of the case, the Justice determined that “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 noted that ruling out the possibility of liability using a summary judgement may not be appropriate.

The plaintiff provided adequate evidence which could lead to a finding of liability. Her experience on the phone with her daughter during the aftermath of the accident included dealing with her on the phone, the aftermath of her significant injuries, and with the plaintiff’s own psychological injuries.

About Deutschmann Law

Deutschmann Law serves South-Western Ontario with offices in Kitchener-Waterloo, Cambridge, Woodstock, Brantford, Stratford and Ayr. The law practice of Robert Deutschmann focuses almost exclusively in personal injury and disability insurance matters. For more information, please visit www.deutschmannlaw.com or call us at 1-519-742-7774.

The opinions expressed here, while intended to provide useful information, should not be interpreted as legal recommendations or advice.