Insurance Claims for Psychological Injuries
A 1988 B.C. Supreme Court judgment may have determined there is no “logical difference between a scar on the flesh and a scar on the mind,” and in recent years, the number of lawsuits involving psychological injuries has grown. The increasing willingness of the courts to hear these cases and to award damages speaks to a growing recognition of the fact that psychological injuries are real, debilitating, and can last for a lifetime.
However, this type of litigation is relatively new for Canadian courts, and there have been some interesting twists and turns along the way. In the case of Mustapha v. Culligan, for example, a man claimed that seeing dead flies in an unopened water container caused him to develop a major depressive disorder, phobias, and anxiety. He was first awarded $341,000 in damages, but the ruling was later overturned by the Supreme Court of Canada. This was seen as a move by the court to stop nuisance suits from proliferating. In the court’s opinion, the Supreme Court noted: “…[P]sychological disturbance that rises to the level of personal injury must be distinguished from psychological upset. Personal injury at law connotes serious trauma or illness…The law does not recognize upset, disgust, anxiety, agitation or other mental states that fall short of injury. I would not purport to define compensable injury exhaustively, except to say that it must be serious and prolonged and rise above the ordinary annoyances, anxieties and fears that people living in society routinely, if sometimes reluctantly, accept. …Quite simply, minor and transient upsets do not constitute personal injury, and hence do not amount to damage.”
It was a recognition that Mustapha’s claim was frivolous, but that actual psychological injuries may deeply affect the victim’s life and should be taken seriously.
Often actual traumatic psychological injuries are caused by a life-changing event such as an automobile accident, and as such may be part of a personal injury law suit. The increase in psychological injury claims has left insurance companies scrambling to develop policies surrounding these types of injuries.
Filing a Claim for a Psychological Injury
It’s much easier to prove that you have suffered a physical injury than it is to prove a psychological one. With a physical injury, you can provide x-rays, photos, and a host of test results and medical records. Psychological injuries, by their nature, are invisible, and evidence is provided by subjective reports. When you decide to file a personal injury claim, be aware that there are certain thresholds that must be met in order for your claim to be successful. Although it can be difficult to measure psychological injuries, the insurance industry, in conjunction with medical professionals have developed some definitions and guidelines.
Ontario’s Insurance Act stipulates that a psychological injury must cause permanent and serious impairment of an important function or functions in order to claim damages. “Permanence” is generally understood to mean that the patient’s prognosis is poor and he/she is unlikely to improve. “Importance” is a more elastic term, and is considered in the context of the patient’s life. “Serious” is taken to mean that the injury has a serious impact on day-to-day activities.
The Ontario Psychological Association has had guidelines for assessment and treatment of psychological injuries in auto insurance claims for nearly a decade. These lay out specific diagnostics and treatments, with complicating factors also enumerated.
Even if you are certain that your psychological injuries will meet these definitions, there may be other aspects of your life to consider before filing a claim. Courts are seeing more cases that are complicated by the plaintiff’s prior history of mental illness, or by overlapping causes, and it can be difficult for a claim to prevail when these exist. Often the success of a psychological injury claim rests not only the strength of the evidence, but also on the credibility of the claimant.
A Personal Injury Law Firm
In order to file a successful claim for psychological damages, you should partner with a personal injury lawyer. These cases are complicated, and insurance companies are notorious for requiring demanding paperwork. Only an experienced personal injury lawyer will be able to advise you as to the best strategies and help you to gather the necessary information.
In Ontario, most personal injury law firms offer a free initial consultation. Research law firms online, and shortlist a few that seem like they might be a good match for you. Take your needs into consideration. Can you travel easily to their location? Do you prefer to communicate in a language other than English? Also consider the law firm’s reputation, their philosophy, and whether or not their lawyers have experience with these types of cases. Make a list of questions you may have about the process or the financial arrangements. Meet with a lawyer and see whether or not you think that you could work with that person. Did they answer your questions? Was communication clear and understandable?
If you or a family member has suffered a psychological injury due to a trauma, contact a personal injury law today to explore your options.