How can I prove mental injury in a personal injury claim?

When someone suffers an accident in Ontario and takes legal action, they may be entitled to damages for pain and suffering known as general damages. General Damages are financial compensation for the actual harm the person suffered from the accident be it physical or mental. The presumption is that physical injuries can easily be proven because those tend to be visually evident. Photos of the person, hospital records, wearing a cast, the use of crutches or a wheelchair, objective testing such as x-rays, MRIs and CAT scans – these can all easily paint a clear picture.

It is important to differentiate between motor vehicle accidents and non-motor vehicle accidents such as slip and falls and trip and falls. For motor vehicle accidents, accident victims will have to meet a threshold under s. 267.5(5) of the Insurance Act in order for them to receive general damages. In order to meet this threshold, the victim or plaintiff will have to demonstrate permanent, serious disfigurement or a permanent serious impairment of an important physical, mental or psychological function.

But How Can Mental Injury Be Proven?

The Supreme Court of Canada case of Saadati v. Moorhead helped clarify what is needed to prove mental injury. Prior to this decision, the assumption was that the plaintiff had to have a recognized psychological injury that was diagnosed by a psychologist. However, as a result of this decision, that is no longer the case. All that is needed to prove mental injury is the proof of the plaintiff’s symptoms which can be supported from testimony from family or friends.  From this evidence, the court may be able determine on a balance of probabilities if the plaintiff suffers from mental injury.

Of course, having records and confirmation from a mental health professional such as a psychologist or psychiatrist can certainly bolster a plaintiff’s claim. A plaintiff’s lawyer may want to consider obtaining an expert report from a mental health professional to further bolster his or her case. Keep in mind all of the different types of mental harm that occur as a direct result of a personal injury: PTSD, sleeping disorders, anxiety, depression, mood disorders, and being emotionally withdrawn and anti-social are just some of effects of a mental injury. 

Due to the recognition by the Supreme Court of Canada, proving a mental injury is no longer an insurmountable task.

Singer Kwinter has many years of experience representing clients who have had mental injury caused by a personal injury. Contact us today for a free consultation.