In what circumstances will a plaintiff recover damages for nervous shock?

British Columbia, Canada

The following excerpt is from Rhodes Estate v. Canadian National Railway, 1990 CanLII 5401 (BC CA):

Lord Justice Sargant dissented on the ground, as I read his judgment, that the trial judge was correct in charging the jury that the plaintiff could only recover if the shock causing his wife’s illness and death arose from reasonable fear of injury to herself. At pp. 161-62 he said this: I do not think that Dulieu v. White marked any great advance in the development of our law, or any considerable extension in the liabilities of users of the highway for negligence. It is no doubt more difficult to prove that physical injury results from nervous shock than from direct impact. But when once this difficulty of proof is overcome, I cannot see why a negligence which so nearly causes direct impact as to cause physical injury by nervous shock is a more remote or less natural cause of damage than a negligence causing actual physical impact. Or, to put it more precisely, as a matter of duty which is owed to the plaintiff, and the neglect of which has caused damage, the duty of the defendant so to control his vehicle as to avoid causing physical injury to those on or near the highway, including the plaintiff, can hardly be limited to actual physical impact on the plaintiff (though this is in fact the result of the American cases), but must logically include such an immediate threat of impact on the plaintiff as to produce physical injury to him, or her, through the nervous system. There seems to me to be no magic in actual personal contact. A threatened contact producing physical results should be an equivalent. The principle on which a threatened battery may justify damages for assault is in my view strictly analogous. In the case of a threat of imminent danger to a plaintiff resulting in illness through nervous shock, there is, in my view, as real and direct an interference with the personality of the plaintiff as if the illness had been caused by actual physical contact with him. And the duty of a defendant to avoid acts or omissions which will result in the illness of the plaintiff seems to me as clear and definite in the one case as in the other, though no doubt the occasions on which illness will result are much less frequent in the first case than in the second. [emphasis mine]

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