Psychiatric Injury Claims

• Author: Geoffrey D.E. Adair, Q.C.
• Pages: 265-278

Psychiatric Injury Claims

Geoffrey

D.E.

Adair,

Q.CJ

A.

INTRODUCTION

The

term "psychiatric

injury

claims7'

(or,

as

they

are

popularly

known,

"nervous shock claims")

refers

to

claims

for

damages

for the

negligent

infliction

of

psychiatric

injury,

psychiatric

illness,

or

other

emotional

in-

jury

or

disturbance unaccompanied

by

physical

injury

to the

claimant.

Occasionally

such claims

are

primary

in the

sense that

the

plaintiff

is

the

direct

and

immediate victim

of an

alleged tortious

act.1

More

often,

nervous

shock claims

are

secondary

in

nature

in

that they

are

brought

by one

person

as a

result

of

psychiatric

injury

arising

out of

death

or

injury

of

another.

Common

law

judges have long struggled

to find an

appropriate bal-

ance

between

allowing reasonable

and

meritorious psychiatric injury

claims while

at the

same time

not

opening

the

door wide

to the

type

of

imaginary

or

questionable claims that broad compensation

for

nervous

shock

might bring. This attempt

to find a

proper balance

has

caused

the

evolution

of the law

governing recovery

for

psychiatric

injury

or

ner-

vous shock claims

to be

marked

by

contradictory judgments, obscure

reasoning,

and

confusing

terminology. Notwithstanding repeated

re-

*

Geoffrey

D.E.

Adair,

Q.C.

of

Adair Morse LLP.

i

For

example,

Mustapha

v.

Cullingan

of

Canada

Ltd.,

[2005]

O.J.

No.

1469

(S.C.J.).