How to Prove Emotional Distress in a Personal Injury Claim

Psychological harm and mental suffering are not “visible” accident injuries. It can be difficult to prove what can’t be seen—but that doesn’t make these types of injuries any less important, any less debilitating, or any less deserving of compensation. 

You may be entitled to damages for mental injury arising from a traumatic incident such as a car accident, dog attack, defective product, or slip and fall caused by someone else’s fault or negligence. The focus of today’s post from our Oshawa and Lindsay law firm is on emotional distress damages in personal injury claims, including what constitutes a compensable mental injury and the types of evidence you’ll need to prove your claim.  

Claiming Compensation for Accident Injuries

A person who suffers injuries caused by someone else’s fault or negligence is entitled to pursue a claim for compensation. To win compensation in a negligence lawsuit, the injured person (the plaintiff) must prove each element of the following “duty of care” analysis: 

(i) that the defendant owed a duty of care to the plaintiff to avoid the kind of loss alleged; 

(ii) that the defendant breached that duty by failing to observe the applicable standard of care; 

(iii) that the plaintiff sustained damage; and 

(iv) that such damage was caused, in fact and in law, by the defendant’s breach.

An injured person’s claim will fail if they don’t provide sufficient evidence to prove each element on a balance of probabilities. 

Compensation for Mental Injuries 

A person injured by another’s negligence is entitled to compensation for any resulting injuries, whether physical, psychological, or a combination of both. The types of psychological conditions that commonly manifest after an accident include depression, anxiety, and post-traumatic stress disorder (“PTSD”). 

However, recent decisions from the Supreme Court of Canada (Saadati v. Moorhead, 2017 SCC 28) and the Ontario Court of Appeal (Bothwell v. London Health Sciences Centre, 2023 ONCA 323) have confirmed that a mental injury does not require the plaintiff to have suffered from a recognizable psychiatric illness to warrant compensation. It’s also possible to recover damages for emotional distress in Canada, provided that important legal principles are satisfied.

Legal Framework for Emotional Distress 

The landmark cases referenced above set out the legal framework and key principles that apply when a plaintiff claims damages for mental injury or emotional distress. They are as follows:

1. Recovery for mental injury requires the plaintiff to satisfy the ordinary duty of care analysis (as discussed above: duty, breach of the duty, and whether the plaintiff sustained damage caused by the breach); 
   

2. Liability for mental injury must be confined to claims which satisfy the proximity analysis within the duty of care framework and the remoteness of the inquiry;  
   

3. The disturbance of a mental injury must be shown to be serious and prolonged, and rise above ordinary annoyances, anxieties, and fears; 
   

4. While expert evidence can assist in determining whether a mental injury has been shown, it remains open to the court, on other evidence adduced, to find that the plaintiff has proven, on the balance of probabilities, the occurrence of a mental injury; and
   

5. Where a psychiatric diagnosis is unavailable, it remains open to a trier of fact to find on other evidence adduced by the plaintiff that he or she has proven on a balance of probabilities the occurrence of mental injury. 
   

The major takeaway when it comes to proof is that a mental injury is not proven by the existence of mere psychological upset. To prove a compensable mental injury, a plaintiff must show that the disturbance they suffered is serious and prolonged and rises above the ordinary annoyances, anxieties, and fears that come with living in civil society.

How Do You Prove Compensable Emotional Distress?

The plaintiff’s task is to show the “requisite degree of disturbance” to become a compensable mental injury. It’s not enough to provide evidence of psychological upset, such as feelings of anger and frustration. The court must consider not only the plaintiff’s psychological upset but also:

(a) how seriously the plaintiff’s cognitive functions and participation in daily activities have been impaired; 

(b) the length of such impairment; and 

(c) the nature and effect of any treatment sought and taken in relation to the psychological upset.

The requisite degree of disturbance for a compensable mental injury can be demonstrated by the following crucial types of evidence: 

• Medical records, both pre- and post-accident, to demonstrate your medical history, absence of pre-existing mental illness, the extent of the mental injury caused by the accident, medications/treatments received, and how the mental injury impacts your daily life
  

• Notes of treatment providers including treatments considered, received, or proposed for the future
  

• Your testimony about the symptoms you experience and how your day-to-day functioning is impacted
  

• Testimony from witnesses such as your family, friends, or colleagues
  

• Expert opinion from a medical professional providing an evaluation of your psychological condition, symptoms, and daily functioning. 
  

In relation to that last point, it’s not strictly necessary to adduce expert evidence in these types of cases, but the Supreme Court of Canada has indicated that a plaintiff who doesn’t provide expert evidence runs a risk of being found to have fallen short.

Legal Advice from Our Law Firm

If you or a loved one has suffered psychological harm, emotional distress, or mental injury as a result of someone else’s negligence, the personal injury lawyers at our Oshawa and Lindsay law firm are here to guide, advise, and support you. 

At Kelly Greenway Bruce, we recognize that psychological injuries can be just as devastating as physical injuries. You could be entitled to damages to compensate you for loss of enjoyment of life, loss of income, medical expenses, and more—but you will need solid evidence to succeed in a claim for emotional distress in a personal injury claim. 

Our law firm (Lindsay and Oshawa) proudly serves Whitby, Ajax, Kawartha Lakes, Durham Region, and the GTA. We welcome you to contact us today to schedule a free initial consultation. We can evaluate your case, estimate what your claim is worth, and help you gather crucial evidence to maximize your personal injury compensation.