Written by: Brandon Pedersen, Associate and Savannah Snyder, Student-at-Law
Proving emotional damages in personal injury cases can be challenging, as psychological injuries are often less tangible and visible than physical ones. Fortunately, within the last decade, the Supreme Court of Canada and Ontario Court of Appeal have transformed the recognition of compensable psychological and mental injuries in personal injury cases.
Saadati v Moorhead (“Saadati”) is an important case for emotional distress damages, confirming that the elements that must be proven for psychological injuries are the same as that for other injuries.
In determining whether a mental injury exists, the seriousness of the impairment of cognitive functions and participation in daily activities, the length of such impairment, and the nature and effect of any treatment are considered. Essentially, the inquiry must include a consideration of the level of impairment that the claimant’s particular feelings represent.
A mental injury does not require the plaintiff to have suffered from a recognizable psychiatrist illness, but, a plaintiff must show that the disturbance suffered by the plaintiff is “serious and prolonged and arise[s] above the ordinary annoyances, anxieties and fears” that come with living in civil society.
The Ontario Court of Appeal in Ahluwalia v Ahluwalia reiterated that “while the methods by which psychological injury can be proved have been relaxed, and courts’ understanding of what constitutes such an injury have evolved, it remains the case that mere upset, or a vague assertion of psychological harm, will not suffice.”
It is therefore necessary to adduce evidence to prove impairment of function and participation in daily activities as well as the nature and effect of any treatment. Supporting evidence includes a review of the plaintiff’s pre-accident health history, clinical notes and records of treatment providers after the date of loss and retaining the appropriate experts to provide an unbiased opinion as to the psychological impairment.
Consideration of Pre-Accident Health and External Factors
In Aube v Manitoulin Health Centre (“Aube”), the Ontario Superior Court of Justice reiterated that the psychological injury or illness must be caused by the defendant’s negligence. In Aube, the Court accepted that the plaintiff experienced prolonged and significant effects from a “psychological malady”. However, due to the plaintiff’s pre-accident health history and existence of pre-accident psychological injury, the Court was unable to find the trip and fall caused or contributed to the plaintiff’s psychological injury. The Court instead attributed the plaintiff’s psychological struggles to have been caused by her having to care for her husband who had terminal cancer, rather than by the incident for which she was pursuing a claim for. It is important to identify these potential issues early in the case in order to demonstrate a causal relationship between the incident and the impairment.
Clinical Notes and Records of Treatment Providers
Treatment providers notes and records outline a patient’s, or plaintiff’s, mental injuries, including treatments considered or administered. These records can strengthen the plaintiff’s case in establishing mental injuries. Without such records, the plaintiff runs the risk of a negative inference being drawn against them. This occurred in Bothwell where the plaintiff claimed psychological damages due to the administration of the alleged incorrect medication while recovering in hospital after surgery. However, there were no records of functional impairment, interference with activities of daily living, or treatment for emotional symptoms, as a result of the alleged medication error. The Honourable Justice Gillese of the Ontario Court of Appeal found that the lack of evidence of impairment distinguished this case from other cases where regular complaints made to treatment providers assists in proving mental injury. Ultimately, Justice Gillese, in allowing the appeal and dismissing the action, concluded that “feelings of anger and frustration, without more, is evidence of psychological upset, not injury” based on the principles in Saadati.
Expert Evidence
Recently, the Ontario Court of Appeal reiterated Saadati stating that although not necessary, plaintiff’s “run a risk of being found to have fallen short” without expert evidence, citing Saadati.
Psychologists and psychiatrists are experts who are in a good position to opine on mental and emotional damages. The distinction between the expertise of a psychiatrist and psychologist will influence which expert is best suited for your case, depending on its weaknesses and strengths. A psychologist focuses on assessing and treating mental health through psychotherapy and exploring how mental health impacts daily life. In contrast, a psychiatrist specializes in diagnosing and treating medical conditions, as well as evaluating medication needs. Although proving psychological injuries may be challenging, obtaining both pre- and post-accident clinical notes and records, along with expert evidence, will help strengthen a plaintiff’s claim for emotional distress.
