Injuries arising from nervous shock are recoverable under the Uninsured Motorist Claims Fund

A young woman suffered nervous shock after watching her cousin be struck and killed by an uninsured motor vehicle. A dispute arose as to whether the young woman’s insurer or the Uninsured Motorist Claims Fund would be responsible for the damages. The trial judge determined that the Uninsured Motorist Fund was responsible for compensating the young women.  The finding was upheld on appeal.

LeBlanc v. Wawanesa Mutual Insurance Co., [2006] N.S.J. No. 508, Nova Scotia Court of Appeal, December 18, 2006

Ms. Hartling was a young woman who suffered nervous shock after seeing her cousin, Mr. Hartling killed when he was struck by an uninsured motorist, Mr. Leblanc. Ms. Hartling claimed against Mr. Leblanc who, while obliged to, could not compensate her. Wawanesa, the auto insurer of Mr. Hartling’s stepfather, and the Uninsured Motorist Claims Fund (the “Fund”) agreed to be bound by the court’s decision as to which of them should compensate Ms. Hartling. When the Trial Court held that Wawanesa’s coverage did not extend to this type of loss and ordered the Fund to compensate Ms. Hartling, the Fund appealed.

The Insurance Act prescribed the language for mandatory coverage under the policy issued by Wawanesa. The key policy provision effectively stated that recovery would extend to Ms. Hartling if her claim for nervous shock represented damages “for” the death of Mr. Hartling, an insured person under the policy. The Fund argued that coverage by Wawanesa existed under this provision because the nervous shock was “caused by” the death of Mr. Hartling.

The Court of Appeal found there was no evidentiary basis in the facts from which to conclude that the nervous shock was caused by Mr. Hartling’s death. Rather, it could only be inferred that the nervous shock resulted from the global effects of the accident. Because the facts did not establish that Ms. Hartling’s nervous shock resulted from the fact of Mr. Hartling’s death, the appeal was dismissed.

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