you claim damages for witnessing a fatal motor vehicle collision?

Can you claim damages for witnessing a fatal motor vehicle collision?

Written by: Nick Todorovic and Mandeep Tamber, Student-At-Law

The decision of Justice Michael T. Doi in Bustin v. Quaranto has opened the doors for Plaintiff’s success in a claim for damages arising out of witnessing a fatal motor vehicle collision.

The Collision

Daniel Bustin brought a claim for personal injury damages against the driver who allegedly caused the two-vehicle crash. This driver ultimately killed the two occupants of the other vehicle. It is worth noting that the driver is no stranger to breaking the law. He has been previously convicted of a dangerous driving charge and has numerous Highway Traffic Act violations to hclaim damagesis name.

Mr. Bustin, who was attending a Thanksgiving gathering at his Aunt’s home at the time of the fatal motor vehicle collision, stated 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 as a result of witnessing the double-fatality motor vehicle collision, he suffered physical and mental injuries akin to or notionally equivalent to being struck by the Defendant’s vehicle in the collision.

Motion to Strike the Plaintiff’s Claim

The Defendant brought a Rule 21 Motion to have the Plaintiff’s claim for personal injury damages struck. The Defendant held the position that Plaintiff had no cause of action against him and for that reason, the case should be thrown out of court.

The Decision

The Judge dismissed the motion as the Defendant failed to satisfy the required test to strike a motion. The court will only strike a claim under this rule if it is “plain and obvious” that the claim has no reasonable prospect of success. The Judge was satisfied that Mr. Bustin did have an arguable basis to claim that the Defendant owed him a duty of care. This duty of care could then lead to a breach of that duty, resulting in the Defendant being responsible for the resulting damages.

Duty of Care to Bystander

The Judge noted that the duty of care to bystanders was established in the English case of Alcock v. Chief Constable of Yorkshire Police, [1991] UKHL 5 and that it is not out of the realm of possibilities that Mr. Bustin can successfully argue a claim for damages. This duty of care requires the establishment of physical proximity by the Plaintiff. As it stands, Mr. Bustin claims that he saw and heard the fatal motor vehicle collision as it unfolded before him, successfully establishing the physical proximity.

Further, the Judge noted that the claim cannot be struck as “a trial may well be needed to properly consider the duty which makes it inappropriate to strike the claim”.

Consequently, Mr. Bustin will get his day in court to determine whether he is liable for damages arising from his injuries as a bystander to a fatal motor vehicle collision.

Why is this important for those who have suffered Personal Injuries  

This decision highlights the importance of not allowing claims to be struck simply based on uncertainty arising from unsettled jurisprudence. This decision reiterates the test in obtaining an order on a motion to strike and that what elements defence counsel need to make out before obtaining one.

As Chief Justice McLachlin put it, in Knight v. Imperial Tobacco Canada Ltd: 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.

How Can McLeish Orlando Help?

If you have suffered any personal injuries arising out of any event, and you are not sure whether you have a viable case, call the personal injury lawyers at McLeish Orlando LLP. You can book a free consultation on our website or give our office a call: at (416)-366-3311.

Nick Todorovic


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