The law can seem cold. When a defendant’s negligence causes property loss, lost income, a need for future care, or any other loss to which you can readily attach a dollar figure, the court is prepared to order compensation. But it hesitates when emotional suffering is raised. Emotions are subjective, hard to evaluate, and hard to quantify. What types of emotional suffering are compensated?
Pain and suffering
With damage caused to a thing, the remedy is repair or replacement of the damaged part. When a person is physically injured, psychological consequences often flow from the injury.
Lacerations, for example, may leave visible scars that affect a person’s self esteem and relationships. Fractures may leave deformed limbs that interfere not only with work, but participation in sports and other activities that once gave them pleasure. Chronic pain may set up a cycle of poor sleep and anxiety. A brain injury can permanently alter not only a person’s ability to do simple tasks, but also their personality and relationships. Any of these in combination or alone can cause emotional disruptions that range from frustration and inconvenience to long-term, debilitating depression.
Because money cannot replace good health, the courts have decided that damages are to be awarded primarily to console the injured person and let them buy goods and services which will give them some pleasure to offset their losses.
Unlike American courts, in 1977 the Supreme Court of Canada decided to cap damages for pain and suffering. The maximum, allowing for inflation, is now approximately $300,000.
Suppose someone is not personally injured in an accident, but witnesses the death of a loved one and as a consequence, develops a psychiatric illness? This may constitute a “nervous shock” claim, if l there is
- a close emotional relationship between the person who was killed or injured and the witness,
- a close distance between the accident victim and the witness, and
- a short time lapse between the accident and the psychiatric illness.
How narrowly does the court define nervous shock? In one instance, a B.C. mother became seriously and chronically depressed after her twenty-three year old son was killed in a train wreck in Alberta. For eight days she suffered the uncertainty of not knowing whether her son was dead, was then shown the wreckage of the car in which it was thought he had died… only to learn that it was the wrong car, was directed to the wrong memorial service and later received her son’s remains in the mail. After considerable analysis, the B.C. Court of Appeal confirmed that our laws do not recognize a claim for grief and sorrow and, as the mother had not witnessed the accident, there could be no claim for nervous shock.
Aggravated damages // mental distress
The essence of this claim is to compensate the plaintiff where the defendant’s conduct causes the plaintiff significant emotional suffering. One judge described this as “additional compensation” which may be justified where the plaintiff’s “sense of resulting from the wrongful physical act is justifiably heightened by the manner in which or motive for which the defendant did it.”
In one case, for example, the RCMP invaded the home of a bricklayer and his family, apparently to arrest the bricklayer for involvement in illicit drugs. A melee ensued, during which the police shot the family dog, landed a blow to the bricklayer’s head causing brain injury, and left him with various bruises. The Court of Appeal increased the bricklayer’s award for pain and suffering by $30,000 because the brutal and unexpected nature of the assault was found to have caused or contributed to the bricklayer’s psychological injuries.
Claims for mental distress have also been awarded in disability cases. Where an wrongfully refused to pay benefits, courts have found the refusal created serious emotional and financial hardship for the plaintiff, who was already physically and mentally vulnerable because of the illness that prevented them from working. All this when the disability insurance contract was designed to provide peace of mind in the event the person was unable to work!
In wrongful dismissal claims, additional damages can be claimed where a person has not only been fired from their job but has also, for example, been subjected to serious allegations of wrongdoing in the workplace that the courts discover were unfounded.
Loss of care, guidance, and affection
In B.C., the Family Compensation Act allows family members to sue for the defendant-caused death of a parent or child. The suit isn’t for damages based on grief and sorrow (not claimable), but for loss of the care, guidance and affection that a child, for example, would have enjoyed from the deceased parent.
These awards may be as high as $40,000. The courts look at the age of the child, their relationship with the parent, and the quality of parenting which the child had enjoyed.
Once a child becomes emotionally self-sufficient, there is no longer any entitlement to this type of claim. As a person ages, however, the dependency roles may reverse. In one case, an aging mother, whose daughter was her primary caregiver, spoke her language and shared strong cultural ties, was awarded $15,000 to compensate her for the loss of guidance and companionship she had enjoyed with her daughter.
Other areas where emotional suffering is considered include infringements of the Human Rights Code, assault, breach of fiduciary duty, wrongful imprisonment, defamation, malicious prosecution, etc.
As we begin to better understand the reality of emotional suffering and its effect on our lives, we can expect these insights to be presented by expert psychiatrists and psychologists on behalf of plaintiffs, and their impacts reflected in compensation awards. This has happened most notably in cases of sexual assault where awards for emotional trauma have increased dramatically over recent years.
The law can seem cold, but it listens.
Excerpt from “ACCESS TO JUSTICE: Legal issues for the injured and people with disabilities,” written and produced by Faith Hayman, Barrister and Solicitor.
This is for informational purposes only and its contents are not intended nor should be considered to be legal advice.
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