The law is clear that both psychological injures and/or physical injuries can cross the threshold of a serious and permanent impairment for which compensation for pain and suffering can be sought and received.
Any experienced personal injury lawyer practicing in Ontario today will tell you that the nature and extent of such an injury is what will determine the ‘value’ of that injury. At trial it is the jury of six people which determines the quantum of damages, or the value of an injury. The more severe the injury, the more the award for damages should be.
Some driving factors in determining how serious a psychological injury is will be whether the injured person is prevented from working because of it, whether the plaintiff has a history of previous psychological impairments, whether the plaintiff’s activities of daily living are affected by the injury and if they are, to what extent.
The evidence required to establish these factors at trial may come from lay witnesses, ie. people who knew the plaintiff before and after the accident such as friends, colleagues, and family member. Additionally, expert evidence from treating physicians and litigation experts (psychiatrists or psychologists) will be required to prove the nature and extent of such an injury.
Experienced legal counsel will, through the evidence he or she calls, paint a picture of the Plaintiff’s life before and after the accident and how the psychological injury has impacted the Plaintiff’s life. Family members, friends and work associates are excellent examples of witnesses who can assist the Plaintiff’s trial counsel in painting this picture.
Psychological injuries are ‘invisible’ injuries which cannot be seen on x-ray. Pains must be taken by the trial lawyer to interview all potential witnesses so as to get a full picture of how the injury affects the Plaintiff’s life. The opinion of the Plaintiff’s expert must be supported by this evidence in order for the Plaintiff to have a credible claim.
How will the defence insurer counteract such evidence?
Typically the defence will use surveillance evidence to undermine the Plaintiff’s credibility. This surveillance consists of videos and reports taken over a period of time by a private investigator hired by the defence who is operating surreptitiously from a vehicle or van out of the sights of the Plaintiff. The investigator follows the Plaintiff through his or her day, noting his or her activities and filming them.
Surveillance evidence can be devastating for a Plaintiff at trial where the evidence clearly contradicts a Plaintiff’s claim as to what activities he/she cannot participate due to his/her injuries. An astute Plaintiff’s personal injury lawyer will understand how best to deflect surveillance evidence well in advance of trial and will have prepared the Plaintiff and his witnesses by leading evidence to address the surveillance.
The defence will attempt to use social medial posts by the Plaintiff including Instagram and Facebook and will ask that this be preserved for use at trial. The Defence hope to obtain social media images of the Plaintiff participating in events or activities that the Plaintiff has testified being unable to do. The Defence will also try to use any posts or images showing the Plaintiff traveling or engaging in strenuous activities in an effort to argue the Plaintiff has not sustained a serious injury. Again, experienced personal injury lawyers will have advised the Plaintiff of this likelihood at the outset in order to avoid potentially embarrassing or misunderstood posts.
Success in establishing a psychiatric injury is based upon how reliable and credible the Plaintiff is.
It may be that the injured Plaintiff develops a psychiatric condition as a result of the experience of unremitting chronic physical pain brought about by a collision. The psychiatric condition then makes the experience of physical pain worse and the pain makes the psychiatric condition worse, in a persistent spiral of depression, anxiety and physical pain. A condition of chronic pain may over time become a psychological condition, even though it begins with purely physical symptoms. This type of condition may be just as debilitating as a physical response to an accident and may persist long after the original physical symptoms should have subsided in some people.
Our personal injury office has had much experience over the years in representing Plaintiff’s with psychological/ psychiatric conditions including but not limited to: post-traumatic stress disorder (PTSD), somatic symptom disorder, chronic pain disorder, anxiety and depression, major depressive disorder, driving phobia, generalized anxiety disorder, post traumatic concussive syndrome, panic disorder, adjustment disorder, bereavement disorder.
If you have experienced a psychiatric injury of any kind and wish to consult with a lawyer experienced in recovering compensation for those who have sustained psychological impairments, call Hillier and Hillier at 905 453 8636.
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