Recovering Damages For A Psychological Injury Without A Formal Diagnosis

Feb 6 2018

A recent Supreme Court of Canada ruling determined that the courts do not need a psychologist to find that someone has suffered psychological changes because of an accident. This might lead some to believe that it could be easy to convince a judge or jury that there’s something wrong with him/her when, in fact, there is not.

But while the law does not always require the testimony of an expert, documentation showing a history of treatment will go a long way in establishing credibility and validity. Absent documentation and testimony of an expert, the court can also look at several factors in arriving at a decision.

Reasoning

To be awarded damages for any injury, the court must find that the other person has breached “a duty of care” by some act or omission giving rise to an injury, whether it is physical or psychological. Put another way, that the injured person had a reasonable expectation of not being injured by another party’s actions.

The Supreme Court has now stated that a psychiatric illness does not have to be a condition that an expert recognizes or that it fits neatly into a category recognized by mainstream psychology; the person suffering must simply be able to show that the “disturbance suffered is serious and prolonged and rises above the ordinary annoyances, anxieties and fears that come[s] with living in civil society.”

In the Supreme Court ruling, the claimant was able to show, through the testimony of his friends and relatives, that the psychological injury he suffered was longer than it should have been and was much more serious than it would be for the average person involved in a similar accident.

However, without the testimony of an expert, and without being evaluated by a licensed professional, can the court really know if the person who is suing actually suffering from a psychological issue due to an accident? It seems that it would be easy enough for a person to act as if he or she had a psychological problem and to convince others of the same, though the change in behavior must be present all the time.

So while this ruling makes it easier for someone who is honestly suffering from psychological issues easier to receive compensation, it also opens up the door for potential abuse of the situation.

Consequences

The Supreme Court ruling also stated that since a complainant does not always have to prove a physical injury through the use of expert evidence, he/she should not have to go through the inconvenience or challenge of getting proof for a psychological injury since that proof is not required to meet the required threshold.

However, it should be pointed out that a person would likely be viewed in a much more positive light – which could also be beneficial to their overall compensation – if he or she does have expert proof of a psychological illness caused by an accident.

Additional consequences that could arise from obtaining demonstrable proof could include:

Weakening the position of any independent medical exam (IME) that the other side requests. Potentially, their only argument would be that the complainant is lying and they would have to have strong evidence to support this.
They might also argue that the psychological symptoms were not caused by the accident or that the symptoms are not severe enough to warrant an award.
If two opposing experts testify – with one expert saying that the symptoms are severe and the other expert saying they are not – the court could be forced to rely on the testimony of friends and relatives who may or may not be able to offer additional information that the court would need to make a fair and honest ruling.

If you or someone you know has suffered psychological injuries due to an accident, contact RDM Lawyers today to set up a consultation.