Personal Injury Claims ? Mental Damages
| Author | R.J. O'Shaughnessy and Anne E. Spafford |
| Pages | 1091-1105 |
CHAP TER 51
Personal Injury Claims —
Mental Damages
R.J. O’Shaughnessy and Anne E. Spaord
I. INTRODUCTION
Claims for personal injuries abound in our civil litigation system. Oen, the injuries allegedly sustained
by the claimant are not only of the physical kind but also involve some element of psychological disturb-
ance. Since claims of the psychological or psychiatric kind are not usually obvious to the naked eye and
involve an element of self-reporting by the claimant, their proof is made dicult. Opinions from psych-
iatrists or other mental health professionals will likely be crucial to proving or defending such claims.
In this chapter, we outline briey the legal process and the types of issues that are likely to arise in
proceedings involving damages for injuries of the psychological or psychiatric kind. We will explain the
role a psychiatrist may have to play in personal-injury actions.
In our civil litigation system, the plainti (the one suing) can be either the injured party himself or
a member of the injured party’s family (including spouse, children, siblings, parents, grandparents, and
grandchildren). e injured party can claim damages for the injury and a family member has the right to
advance claims for the loss of care and companionship directly related to any injuries sustained. Under
the provincial Family Law Act, these family members are also entitled to recover any expenses they in-
curred as a result of the injuries, as well as the value of services rendered, such as nursing care. ese
family members are commonly referred to as “Family Law Act p lain tis .”
e alleged wrongdoer who is being sued is the defendant. ere may be more than one defendant
depending on the circumstances of the case. If there are several defendants, the court will be asked to
apportion fault between the defendants who are alleged to have caused or contributed to the injuries. As
well, if the plainti is also partially at fault, her entitlement to damages will be adjusted in proportion.
For instance, a plainti who is 50 percent at fault for causing an accident will see her damages reduced
by 50 percent.
e terms “psychological” and “psychiatric,” when referring to harm sustained, are used interchange-
ably in civil legal cases. Simila rly, the injury sustained can also be referred to as “damage” or “harm.” For
the purposes of this chapter, we will use the term psychological injury.
A. The Legal Process
In Canadian jurisprudence, individuals who have been harmed through the fault of another are able to
seek compensation in the courts. e law that governs such action is most commonly tort law. e term
“tort” arises from the French term meaning “harm.” Tort law, however, arises from English common law
in all provinces outside of Québec. Our current tort law has been shaped by common law tradition that
has now evolved into a complex series of precedents and principles that assist the courts in resolving
disputes where a person is claiming damages because of alleged harm caused by another.
Tort law encompasses a wide range and type of suits that have in common the allegation of negli-
gence or failure to act according to the standard of care that in turn leads to signicant damages to the
To continue reading
Request your trial