Kotai v. The “Queen of the North”

This was a preliminary decision in the class action arising out of the sinking of the “Queen of the North”. This decision assessed the damages of a representative sample of the plaintiffs who were passengers on the vessel at the time of the sinking. The most important aspect of the decision relates to the assessment of psychological injures allegedly suffered. The Court reviewed the authorities on psychological injury or nervous shock and ultimately held that a plaintiff must establish he or she suffered a recognized psychiatric illness to recover for psychological injury or nervous shock. Mere psychological disturbance or upset is not sufficient. The Court further held that the test was the same regardless of whether the plaintiff was actually involved in the accident or merely witnessed the accident. With this framework, the Court then evaluated the claims of six plaintiffs. The Court found that three of the plaintiffs had suffered no recognizable psychological injury. The other three plaintiffs were awarded damages of $500, $7,500 and $12,000 respectively. (It should be noted that the defendant in the case admitted that psychological injuries were recoverable under provincial law and withdrew its earlier position that such injuries were not compensable under the Athens Convention. Thus the compensability of psychological injuries under the Athens Convention was presumed and was not decided. This was clarified in supplementary reasons issued at 2009 BCSC 1604.)