Grief, in the medical community, is defined as a “natural reaction to loss”. Although grief is most often associated with feelings that occur following a death, people can grieve all manner of losses: the loss of a job, a relationship, an opportunity, or a dream. Any time that something a person expects to happen does not, grief can result. When a personal injury occurs, whether in the context of a medical mistake, an automobile accident, or any manner of a negligent act, grief for the injured person and those close to them is common. Experts in loss and bereavement identify eight specific types of grief, several of which correspond to compensable claims under the law.
COMMON (UNCOMPLICATED) GRIEF
Most people, following a loss, journey through grief in a personal, but comparable manner, which leads to the resumption of activities of normal life at some future time. How long it takes to get back to eating, sleeping, working, and enjoying other activities that pre-dated the loss is variable from person to person.
For courts seeking to quantify awards for lost wages while a person recovers, the extent to which the loss impacts their life, and the amount of time it takes for that to abate, are the main considerations. In a previous blog, we emphasized the importance of being a good record keeper with respect to the circumstances surrounding an injury. It is common for grieving people, even those with uncomplicated grief, to experience forgetfulness or memory loss for some period of time. Making written notes about practical details, like shopping lists and when bills are due, as well as pain levels and emotions, can be helpful not only for daily life but for the purpose of court proceedings.
Courts will give significant weight to documentary evidence, including pre-and post-injury work schedules, reports from employers as well as any information an injured person or their close loved ones write down in determining how much to compensate for financial, as well as non-financial, losses. If a person loses their ability to perform housework or childcare, for example, post-injury, the cost of having someone else perform these tasks, for the amount of time that help is needed, maybe recoverable.
ANTICIPATORY AND DELAYED GRIEF
When a person knows that they are about to experience a loss, such as the death of a loved one from an illness, the anticipation of the loss can have serious and debilitating psychological impacts. This is anticipatory grief. In the legal sense, anticipatory losses are those that have not yet occurred but are the reasonably expected result of an injury or other negligent act. A motor vehicle accident that leaves a person permanently disabled can result in income loss, physical, emotional, or psychological pain, damage to relationships, and other circumstances that, while more difficult to quantify, are the source of major awards.
The highest award ever granted in Canada in a personal injury action came in the case Marcoccio v. Ford Credit Canada Ltd., where the most significant portion of the total award of nearly $17 million was comprised of the costs of Marcoccio’s anticipated need for care in the future due to his losses. The circumstances of the case were tragic:
At the time of the accident, the respondent was 20 years old and had just finished grade 12. He suffered serious injuries to the frontal and temporal lobes of his brain in the accident. As a result, he suffers from diminished executive functioning, has enduring physical, psychological, behavioural, and emotional impairments that impede his ability to lead a normal life, and cannot be competitively employed in the future.
Courts rely on the evidence of experts to anticipate how a loss will impact a person’s life, as well as the future of their loved ones, in future. In the case of a young person with their entire life ahead of them, the determination will include an assessment of what that person might have been expected to do for a living, and the money they might earn from that pursuit.
For someone who is married or has children, an award to compensate the family for what they will lose because of that injury may also be compensable. The term “loss of consortium” is often used to describe the experiences of spouses and children who miss out on the love and companionship of a partner or parent because an injury changes that relationship in more than a trivial way. In the case of Martin v. Mineral Springs Hospital, a couple whose baby was stillborn due to birth trauma received an award for loss of consortium due to the strain that grief placed on their marriage.
In a way, prospective awards for future losses are a way to compensate for grief that is delayed. The losses that will happen, even years down the road, may give rise to an entitlement to receive an award, even if those harmed have yet to imagine those losses.
COMPLICATED AND EXAGGERATED GRIEF
Any type of injury can result in grief, which as noted, is considered a normal human reaction to loss and in most cases, resolves over time. However, in some cases, grief becomes complicated, and grieving people can develop medical conditions such as depression, anxiety, or substance abuse. When multiple losses occur, as, in the case of a person suffering a significant injury in an accident that also results in the death of a loved one, grief can become exaggerated. A diagnosis by a medical professional, as well as treatment, is required when grief becomes complicated or exaggerated. If such cases involve negligence, it is this expert evidence upon which courts will rely in making a damages assessment. Courts will also need to separate out the damages resulting from different injuries where some loss resulted from an injury or harm that had nothing to do with the negligence of another party.
What is important to remember is that pain is subjective. The impact that an injury or loss has on any particular person is the basis of the award that person will receive. If someone had a significant wage-earning potential based on their educational goals or achievements, a future income loss award will be greater in the case of that person’s permanent disability from work than an award to someone who did not show such promise. A person who is “stoic”, like the plaintiff in Hanson v. Heuchert, will receive an award only commensurate with the extent to which they report pain and inability to work. Conversely, people who do not demonstrate a concerted effort to rehabilitate themselves to the best of their ability may have their loss awards reduced to account for this “failure to mitigate” (an interesting consideration of whether religion has a role to play in refusing to undergo medical treatment that might result in a mitigation of pain and suffering is available here).
DISENFRANCHISED, INHIBITED AND ABSENT GRIEF
Disenfranchised grief refers to the feeling of loss that occurs when a person grieves over an event or circumstance that society does not deem all that serious or tragic to that particular person. Although any loss can result in grief, not every loss gives rise to a legal entitlement to compensation. Some losses, like the pain that might result when a friend is hurt, or the increase in work that a person must perform at work due to a co-worker’s injury, are too remote to result in any kind of legal claim.
There also are those cases where people sustain a loss but are hesitant to address or even acknowledge it. Where grief is inhibited or even absent, a trusted friend or family member may be instrumental in documenting the impacts of an injury on a person’s life, so that if the desire arises in future to seek legal redress, there is a good body of evidence available to support a personal injury or medical malpractice claim.
CALGARY SERIOUS PERSONAL INJURY AND MEDICAL MALPRACTICE LAWYERS
At the most difficult times, a call to a lawyer may be the furthest thing from your mind, but it may be one of the most important steps you take to find a way forward after a significant injury or loss. At Cuming & Gillespie LLP, we are dedicated to providing our clients and their families with the highest level of professionalism, balanced with sensitivity. Securing an award for you, that will help secure your future, is our greatest concern. Call 403-571-0555 to arrange for an initial private consultation with a member of our team.