The Court held that s. 139 of the Nova Scotia Insurance Act (Section D coverage) did not cover the emotional injury suffered by the Plaintiff. The Uninsured Motorist Claims Fund was obligated to pay on behalf of the uninsured defendant.

Jones v. LeBlanc, [2006] N.S.J. No. 175, Nova Scotia Supreme Court

The deceased was struck from behind and killed while driving his bicycle. The Plaintiff was the deceased’s cousin. The Plaintiff was present at the site of the accident but did not suffer any physical injuries. She commenced an action to advance a claim for nervous shock. The defendant was an uninsured motorist. All issues in the proceeding had been settled except the determination of liability as between Wawanesa, the deceased’s stepfather’s Insurer, and the Uninsured Motorist Claims Fund (the “Fund”).

The deceased was a “person insured under the contract” under 139(2) of the Nova Scotia Insurance Act, R.S.N.S. 1989, c. 231. The parties agreed that under s. 139(2), family members of a deceased may claim for damages as a result of their entitlement as provided in the Fatal Injuries Act, R.S.N.S., c. 163.

The Court noted, however, that a claim for damages under the Fatal Injuries Act did not include a claim for emotional distress or psychological injury which might result from the loss of a loved one. The Fund conceded that if the Plaintiff had been physically injured as a result of the defendant’s negligence, it would have had to pay. However, because the Plaintiff was emotionally damaged as a result of “bodily injury or death” of the “person insured”, the Fund submitted that the Plaintiff was entitled to recover from Wawanesa.

The Court held that the emotional harm suffered by the Plaintiff was too remote from the original contract contemplated, and was not contemplated by the legislature when it passed the legislation. The Fund was liable for the loss suffered by the Plaintiff.

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