Mental injury claim vs. physical injury claim

Posted by: David Pihl | Posted on: August 29, 2017

Most people are familiar with the concept of making a claim for compensation for physical injuries suffered in a motor vehicle accident.   There is more than one classification of such injuries for example “soft tissue” injuries where there are no broken bones; orthopaedic injuries where there are broken bones; “multiple injuries”, where there is more than one injury to more than one area. 

To demonstrate or prove a physical injury, the person making the claim would normally give evidence of pain that he or she suffers, as well as the inability to do certain activities and so forth.  Often, family members will testify as to what they observe in terms of reduced ability and so forth.  Usually one or more medical reports are relied upon where the doctor gives an opinion of the injuries suffered and how the individual has been affected and where possible, how long it will take for a full or partial recovery.  Expert medical evidence is helpful, but not necessary for the injured victim to prove his or her claim.   

Mental injuries like physical injuries connected to the accident, are compensable.  A simple example would be painful physical injuries that result in depression (psychological injury) which interfere with the claimant’s enjoyment of life and become part of the evidence giving rise to the compensation.  Often, a Psychologist or Psychiatrist will give an opinion as to the diagnoses of the mental injury being described.   Until recently, however, and unlike with physical injuries, many would argue the case law required an expert to give an opinion diagnosing a mental injury.

What would the Court do with a situation where there was no opinion evidence from a medical expert that the claimant suffered from a recognized psychiatric illness?   The case of Saadati v Moorhead dealt with that issue.  The trial Judge was prepared in that case to find on the strength of evidence from family members and friends, that Mr. Saadati’s personality was different after the accident.  Mr. Saadati himself gave evidence that he suffered from headaches as a result of the accident.  the trial judge awarded $100,000.00 for general damages.  General damages account for pain, suffering, loss of amenities of life.  There was no award for loss of income. 

The Defendant appealed to the B.C. Court of Appeal which reversed the trial judge’s decision on the basis that the claimant was required to prove through expert medical opinion that Mr. Saadati suffered from a recognized psychiatric illness.

The Supreme Court of Canada disagreed and held that the test or threshold for proof of mental injury should not be any higher than the test or threshold for physical injury.   The use of expert medical opinion, while helpful is not a requirement. 

If you have been injured in an accident and wish explore what compensation is available, it would be best to seek legal advice from counsel practicing in this area.  Making a claim can be a stressful and complicated process; a personal injury lawyer will simplify the process and make sure that your needs are met.

The information provided above is for educational purposes only. This information is not intended to replace the advice of a lawyer or address specific situations. Your personal situation should be discussed with a lawyer.  If you have any questions or concerns, contact a legal professional.

Pihl Law Corporation

300-1465 Ellis Street, Kelowna BC
250.762.5434
lawyers@pihl.ca

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