The law treats sustaining a mental injury due to someone else’s negligence as seriously as suffering a physical injury. If someone has caused you a mental injury, distinct from mere psychological upset, compensation may be available whether the mental injury occurs in conjunction with a physical injury. 

This article examines the concept of proving mental injury and how the provinces’ courts have considered its application in the context of various personal injury claims in Alberta. 

How do you obtain compensation for a mental injury?

Recovery for mental injury in negligence law follows the same principles that apply to physical injuries. The ordinary duty of care analysis of negligence law applies.

To claim compensation in court or have good prospects in settlement negotiations, the injured plaintiff needs to be able to show the following:

  • that the defendant owed them a duty of care;
  • that the defendant breached the standard of care; and 
  • that they suffered an injury that was caused by this breach.

What constitutes a mental injury for negligence purposes?

In the 2017 Supreme Court of Canada decision of Saadati v Moorhead (“Saadati”), the Court considered the law relating to obtaining compensation for a mental injury following a negligent act or omission. The personal injury victim was involved in a series of motor vehicle accidents, one of which caused the victim to experience a personality change. 

The Court decided that an injured plaintiff could receive compensation for a mental injury even if it were not classified as a recognizable psychiatric illness. However, “the existence of mere psychological upset does not prove mental injury” – there is no legal right to happiness, so the plaintiff needs to show a disturbance that is serious, prolonged and goes beyond “ordinary annoyances, anxieties and fears.”

The Court said that relevant factors in determining the existence of a mental injury were:

“… how seriously the claimant’s cognitive functions and participation in daily activities were impaired, the length of such impairment and the nature and effect of any treatment. To the extent that claimants do not adduce relevant expert evidence to assist triers of fact in applying these and any other relevant considerations, they run a risk of being found to have fallen short.”

Types of Mental Injuries

Psychological injuries can take several forms and be of varying severity. Some common types of mental injuries that are present in personal injury claims include:

  • post-traumatic stress disorder (PTSD);
  • general anxiety and accident-related anxiety; 
  • depression;
  • sleep disorders;
  • traumatic brain injury (TBI); and
  • emotional distress and volatile temper.

The symptoms accompanying psychological injuries can often be similar to those of physical injuries. For example, emotional distress can cause a person to experience difficulty concentrating, irritability, crying or sadness. The intensity and duration of these symptoms can be unique to each person. For example, an injured party may experience the same emotional distress or anxiety after an accident.

Psychological Injuries Can be Difficult to Deal With

In the case of Goertzen v. Sandstra, the plaintiff was involved in a low-speed car accident. However, following the accident, he could not work, experienced constant pain, and could not function normally. Through treatment, the plaintiff was diagnosed with major depression, which was noted to be a secondary injury to the chronic pain experienced as a result of the accident, in addition to generalized anxiety disorder and other psychological and social factors which contributed to the mental injury. The plaintiff was involved in a second accident a few years later, which made his depression worse and continued to prevent him from working. 

A number of the plaintiff’s friends and family were called to provide character evidence at trial. The common view was that the plaintiff was happy, healthy and social before the accident and enjoyed his job. However, since the accident, loved ones have noticed that he has become anxious, depressed and frustrated, indicating that he “rarely laughs or smiles anymore.” The Court noted in its analysis that psychological injuries can be challenging to assess as “although not physiological in nature, are real” to the plaintiff. 

Consideration of Pre-Existing Injuries

It is not uncommon for an injured party to have experienced mental or psychological injuries prior to the accident at hand. Like a physical injury, accidents can affect a pre-existing injury and make it worse, and the amount that the injury has worsened is a critical factor in calculating compensation. Even in cases where a pre-existing mental injury is being managed, accidents can bring up old trauma, and the injury may begin to impact a person’s life again in a new way.

For these reasons, medical records and other forms of evidence are critical in supporting a claim for mental injury, particularly as these injuries cannot be seen or experienced by anyone else. Clear medical notes and expert evidence can help illustrate how the pre-existing injury was impacting an individual before the accident and how it was altered after the accident. 

Plaintiff’s Existing Psychological Injuries Exacerbated by Accident

In the case of Seres v. Ramirez, the 39-year-old plaintiff was the third car in a four-vehicle accident. Following the accident, he suffered various injuries, including depression, chronic headaches, anxiety, poor memory, and other emotional problems. He indicated that he also had trouble sleeping, had no energy and was afraid of driving, which impacted his job that involved driving at night, and he was unable to work for one year after the accident. He was assessed by two professionals who came to different conclusions regarding the diagnosis. However, they agreed that psychological injuries partially resulted from the accident. 

The Court found that the plaintiff had a pre-existing condition relating to depression symptoms, which lasted for some time. However, the Court found that the accident exacerbated his condition, and there was a causal link to the Adjustment Disorder diagnosed following the accident. The plaintiff’s psychologist also noted that his anxiety level remained high over a year after the accident, and his psychological trauma recovery would be “lengthy.” 

In Chisholm v. Lindsay, expert evidence confirmed that the plaintiff had lost her full-time employability as a result of the accident. A neurophysiologist who assessed the plaintiff found that she sustained “a mild brain injury, among other injuries,” and noted that she presented a “high degree of psychological distress that included symptoms of anxiety and depression” despite her medical history, including anxiety before the accident occurred. 

Compensation for the Future of Psychological Injuries

Courts have considered the ongoing effect of psychological injuries on an injured party and have awarded compensation to cover such anticipated future treatment costs. In Norminton v. B & B Electronics Ltd., the plaintiff was injured due to her daughter’s vehicle lurching forward and pinning her against the garage door. Following the accident, the plaintiff suffered from various physical and psychological injuries. The Court found that the plaintiff was credible and agreed that her physical and psychological injuries would continue to be present throughout her life. The Court also found that there was no evidence presented to suggest that the plaintiff’s physical and psychological conditions would not continue to degenerate over time. Referring to the case of Imbir v. Barron, the Court awarded the plaintiff compensation for, among other things, general damages and future care costs.  

Contact the Experienced Personal Injury Lawyers at Cuming & Gillespie LLP In Calgary

The team of personal injury lawyers at Cuming & Gillespie LLP in Calgary represents clients in Alberta in various personal injury, long-term disability and medical malpractice claims. We understand what it takes to succeed in a claim against an insurance company, hospital and/or medical professional. If you have suffered physical and psychological injuries, we will advise you on your prospects and help you build the best case possible by gathering the needed evidence. Let us support and guide you through the process. Please call us at 403-571-0555 or contact us online to book a free consultation.