If you have been injured, you may have suffered physical and mental injuries.  This blog explains how the Ontario courts have recently dealt with mental injuries.

Court of Appeal’s Bothwell Decision

Earlier this year, the Ontario Court of Appeal considered the elements required to establish that an injury victim has suffered a mental injury (Bothwell v. London Health Sciences Centre, 2023, ONCA 323).

During a hospital stay, Mr. Bothwell was administered the wrong medication. He and his spouse sued the hospital and the nurse who administered the medication in a medical negligence claim. In their claim, the Bothwells alleged that Mr. Bothwell had suffered physical injuries, in addition to “nightmares, emotional distress, anxiety, depression and psychological injuries as a result of the erroneously administered medication.”

At trial, the evidence about psychological injuries came from the Bothwells. There was no evidence from an expert, like a psychiatrist or psychologist. The evidence showed that Mr. Bothwell continued to be frustrated and angry about the medication incident. However, Mr. Bothwell had not sought treatment for his emotional reaction to the incident. He acknowledged that it did not interfere with his ability to do his job as a paramedic.

The trial judge concluded that “Mr. Bothwell’s feelings were objectively and subjectively serious and went beyond ordinary annoyances.” In summary, the trial judge accepted that Mr. Bothwell’s psychological upset met the standard described in the Supreme Court of Canada’s decision of Saadati v. Moorhead, 2007 SCC 28.

Supreme Court of Canada’s Saadati Decision

Mr. Saadati was involved in 5 car collisions. The trial judge found that he suffered psychological injuries, namely personality changes and cognitive difficulties, as a result of one of the collisions.

The British Columbia Court of Appeal overturned the trial decision by determining that Mr. Saadati had not established a recognizable psychiatric injury with expert evidence.

The Supreme Court of Canada restored the trial judge’s decision by concluding that although no expert evidence had been presented, the evidence showed that Mr. Saadati had suffered “a serious and prolonged disruption that transcended ordinary emotional upset or distress.”

The Supreme Court also rejected the notion that a recognizable psychiatric illness was required to prove a mental injury. However, it explained that if the injury victim does not tender expert evidence, they “run the risk of being found to have fallen short”.

The Supreme Court outlined factors that the trier of facts should consider when determining whether a plaintiff has suffered a mental injury: “How seriously the claimant’s cognitive functions and participation in daily activities were impaired, the length of such impairments and the nature and effect of any treatment.”

So, what is needed to establish a mental injury? (Court of Appeal’s Bothwell Decision)

The injury victim has the burden to prove that they have suffered a mental injury, which is compensable, and not a mere psychological upset, which is not compensable.

The plaintiff must show that the disturbance suffered is serious and prolonged. The disturbance must also be more than “ordinary annoyances, anxieties and fears that come with living in civil society.”

To show the required level of disturbance, the court will consider:

• how seriously the cognitive functions are impaired because of the psychological injury
• how seriously the participation in daily activities is impaired
• how long the impairments lasted
• the type of treatment obtained to address the psychological injury
• whether the treatment was effective
• although not required, whether the evidence was provided by an expert witness.

In Bothwell, the Court of Appeal overturned the trial judge’s finding that Mr. Bothwell had suffered a mental injury.  The Court determined that the trial judge had failed to consider the degree of disturbance caused by the psychological upset.  Feelings of anger and frustration are not sufficient to support a finding of mental injury.

Conclusion

Psychological injuries can often be more difficult to overcome than physical injuries. It is difficult for injury victims to speak up about their mental distress. These “invisible injuries” can be ignored by healthcare professionals.  We have come a long way in recognizing and addressing psychological injury but there is more work to do.

If you have suffered a psychological injury because of a collision, an accident or an incident, contact one of the lawyers at Burn Tucker Lachaîne today.  We offer services in French and English. The first consultation is always free of charge. In almost every case, we offer a contingency fee agreement where you only pay legal fees when your case resolves successfully.

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