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Checklist for Psychological Injury Claims

 Pain_Suffering_Psychological

 Compensation for psychological and psychiatric injury is recoverable in British Columbia for victims of personal injury. The Supreme Court has dealt with psychological and psychiatric factors that overwhelm the physical injuries in numerous personal injury cases. In Agar v. Leonard,2016 BCSC 1430 the court has awarded over $900,000 to the claimant, $110,000 for psychological  pain and suffering. The Judge in Agar found that but for her headaches and psychological problems the claimant’s physical injuries were mild.

The principles to be applied in assessing claims of psychological injury are summarized in Yoshikawa v. Yu, [1996] 21 B.C.L.R. (3d) 318 at 325-326 (C.A.) followed in Keram v. Li, 2015 BCSC 498 and Agar. They are:

  • the pain, discomfort, or weakness must be genuine;
  • the psychological problems must have their cause in the defendant’s wrongful act and not be rooted in desires for sympathy or compensation or be such that the plaintiff could be expected to overcome them through his or her inherent resources;
  • the psychological problems will be found to be subjective or internal if their existence or continuation stems from the plaintiff’s desire for their existence or continuation;
  • causation is not established unless the court can say whether the plaintiff really desired to be free of the psychological problems;
  • identification of the symptoms as “chronic benign pain syndrome” does not resolve the questions of legal liability or the question of assessment of damages;
  • it is unlikely expert opinion can resolve the ultimate questions on which these cases turn;
  • psychological problems will attract damages where the psychological mechanism is beyond the plaintiff’s power to control and was set in motion by the defendant’s wrongful act; and
  • evidence of psychological problems must be of a “convincing nature” but the plaintiff’s own evidence, if consistent with the surrounding circumstances, may suffice for the purpose.

This list is not intended to be exhaustive: Yoshikawa at 326.

To calculate damages owing where psychological injury is found, the Court of Appeal in Perdomo-Flores v. Gurney (1998), 49 B.C.L.R. (3d) 1 at 3 (C.A.) held:

If the plaintiff would never have suffered the problems if the accident had not occurred, or if he or she would have suffered some problems if the accident had not occurred but those problems would have been less irksome, or would have been deferred, then the plaintiff is entitled to recover damages either measured by the entire loss caused by the psychological problems if they would not have occurred at all but for the accident, or measured by the increase in the psychological problems where some psychological problems would have occurred in any event but an increase in the psychological difficulties experienced by the plaintiff, either in intensity or in time of occurrence, was brought about by the accident.

The psychological injury cases start with a claimant being diagnosed with a psychological injury. The medical evidence must then usually confirm that the claimant cannot begin to heal her physical injuries until her psychological problems are resolved.

Posted by Personal Injury Lawyer Mr. Renn A. Holness, B.A. LL.B.

Tags: Legal Causation, loss of earning capacity, Pain and Suffering, psychiatric injury, Psychological Injuries

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