Making a General Damages Claim
Including Payment for Pain, Suffering, Anguish, and Emotional Damage
Page last modified : December 08 2023
When I May File an Emotional Distress Lawsuit?
When suffering is severe, prolonged, and goes beyond what is experienced by people who live in society on a regular basis, cases including claims for emotional injuries may be successful. Though not necessary, medical evidence of a psychological harm is beneficial. Judges Frequently Assume An Uncertain Amount for Emotional Damage.
Knowing When General Damages for Pain, Suffering, and Other Emotional Injuries Are Appropriate
Stress-related injuries include, but are not limited to, worry, annoyance, disappointment, discomfort, fear, frustration, loss of peace of mind, and upset.
notwithstanding the challenge of accurate measurement difficulties. The fact that different persons are susceptible to stress injury and that some people may be more emotionally affected than others makes assessing stress injury particularly challenging.
In the past, courts have frequently opposed awarding damages for stress injury claims in tort cases, with the exception of pain and suffering associated with physical harm or contract violation. This resistance was particularly strong in cases where the plaintiff did not have official medical documentation of a legitimate psychological illness resulting from the misconduct. Those litigants who were already emotionally disturbed by the circumstances leading up to the legal action were frequently made even more distressed by the courts’ unwillingness to address the emotional suffering of victims of wrongdoing. The litigants essentially believed that they had been wronged twice: first by the original crime and then by a legal system that paid scant regard to the psychological effects of wrongdoing victims.
The Law, tort
In addressing the stress injury issues, the Supreme Court made it clear that general damages for mental distress are appropriate where the distress is “serious and prolonged” and goes beyond “the ordinary annoyances, anxieties and fears that people living in society routinely” and that general damages for mental distress do not require medical support in the form of psychiatric evidence.When the following paragraphs from the two cases are considered collectively, they should show that lower courts are required to take general damages awards into consideration when stress arises from tortious behavior and when the stress exceeds what is typical and regular for everyday life. The cases of Mustapha v. Culligan and Saadati v. Moorhead, [2017] 1 S.C.R. 543, contained these ideas.
[2] This Court has, however, never required claimants to show a recognizable psychiatric illness as a precondition to recovery for mental injury. Nor, in my view, would it be desirable for it to do so now. Just as recovery for physical injury is not, as a matter of law, conditioned upon a claimant adducing expert diagnostic evidence in support, recovery for mental injury does not require proof of a recognizable psychiatric illness. This and other mechanisms by which some courts have historically sought to control recovery for mental injury are, in my respectful view, premised upon dubious perceptions of psychiatry and of mental illness in general, which Canadian tort law should repudiate. Further, the elements of the cause of action of negligence, together with the threshold stated by this Court in Mustapha v. Culligan of Canada Ltd., 2008 SCC 27 (CanLII), [2008] 2 S.C.R. 114, at para. 9, for proving mental injury, furnish a sufficiently robust array of protections against unworthy claims. I therefore conclude that a finding of legally compensable mental injury need not rest, in whole or in part, on the claimant proving a recognized psychiatric illness. …
[9] This said, psychological disturbance that rises to the level of personal injury must be distinguished from psychological upset. Personal injury at law connotes serious trauma or illness: see Hinz v. Berry, [1970] 2 Q.B. 40 (C.A.), at p. 42; Page v. Smith, at p. 189; Linden and Feldthusen, at pp. 425-27. The law does not recognize upset, disgust, anxiety, agitation or other mental states that fall short of injury. I would not purport to define compensable injury exhaustively, except to say that it must be serious and prolonged and rise above the ordinary annoyances, anxieties and fears that people living in society routinely, if sometimes reluctantly, accept. The need to accept such upsets rather than seek redress in tort is what I take the Court of Appeal to be expressing in its quote from Vanek v. Great Atlantic & Pacific Co. of Canada (1999), 1999 CanLII 2863 (ON CA), 48 O.R. (3d) 228 (C.A.): “Life goes on” (para. 60). Quite simply, minor and transient upsets do not constitute personal injury, and hence do not amount to damage.
The Law, contracts
In Fidler v. Sun Life Assurance Company of Canada, [2006] 2 S.C.R. 3, the Supreme Court addressed the issue of general damages resulting from stress injury resulting from a breach of contract. It was decided that, in accordance with the Hadley v. Baxendale principle, where the contract bargain contained an emotional benefit element that was reasonably contemplated by the parties to the contract at the time of contract formation, the loss of the emotional benefit should result in compensation as a general damage.
Fidler v. Sun Life Affirmation Co. of Canada, [2006] 2 S.C.R. 3
[44] We presume that harms for mental trouble for break of agreement may, in fitting cases, be granted as a use of the guideline in Hadley v. Baxendale: see Vorvis. The court ought to inquire “what did the agreement guarantee?” and compensate for those commitments. The point of compensatory harms is to reestablish the violated party to the position the person would have been in had the agreement not been broken. As the Privy Board expressed in Wertheim v. Chicoutimi Mash Co., [1911] A.C. 301, at p. 307: ” the party griping ought to, such a long ways as it very well may be finished by cash, be put similarly situated as he would have been in the event that the agreement had been performed”. The proportion of these harms is, obviously, dependent upon distance standards. There is not a great explanation for why this should exclude harms for mental pain, where such harms were in the sensible consideration of the gatherings at the time the agreement was made. This end follows from the fundamental standard of compensatory legally binding harms: that the gatherings are to be reestablished to the position they contracted for, whether unmistakable or elusive. The law’s assignment is basically to give the advantages contracted to, whatever their tendency, on the off chance that they were in the sensible examination of the gatherings.
[45] However, this does not imply that all mental distress brought on by a breach of contract is eligible for compensation. In typical business gets, the probability of a break of agreement causing mental pain isn’t customarily inside the sensible thought of the gatherings. It is normal that a break of agreement will leave the violated party feeling disappointed or irate. The law doesn’t grant harms for such coincidental dissatisfaction. The matter is in any case, be that as it may, when the gatherings go into an agreement, an object of which is to get a specific mental advantage. Damages resulting from mental distress should, in theory, be recoverable in such a situation if they are established by the evidence and shown to have been within the parties’ reasonable consideration at the time the contract was made. The fundamental standards of agreement harms don’t quit working simply in light of the fact that what is guaranteed is an immaterial, as mental security.
The challenge of calculating an award is an inappropriate justification for forgoing the endeavor to make an award if general damages for stress harm, among other things, are suitable. Courts frequently have to make educated guesses in situations like this, when computation is either impossible or extremely complex (e.g., acceptable recompense as a “value for stress”). The necessity to estimate a value for stress damages that is impossible or difficult to ascertain was mentioned in the following cases: Wood v. Grand Valley Railway Co., 51 S.C.R. 283; TMS Lighting Ltd. v. KJS Transport Inc., 2014 ONCA 1
[64] Calculating the damages resulting from a demonstrated loss can be a challenging undertaking. Even when a loss is proven, the data frequently provides insufficient backing for an accurate or trustworthy estimation of the damages that resulted from the loss. Because of this, a trial judge may have to rely on educated “guess work” when faced with a scant factual record about damages, as Finlayson J.A. pointed out in Goldfarb, at para. 75.
Although it was evident from the case’s facts that it was impossible to estimate the plaintiffs’ damages with any degree of mathematical precision, it seems to me that the learned judges there made it clear that such an impossibility could not “relieve the wrongdoer of the necessity of paying damages for his breach of contract”; rather, the tribunal, whether a jury or a judge, was required to do “the best it can” in this situation and that its conclusion would stand even if the verdict’s amount was based solely on conjecture.
Cause of Action
Having said the foregoing, it is crucial to remember that, depending on the nature of the activity, more convincing evidence of stress injury may be needed, and the quality of the medical evidence may be necessary to provide this “proof.” For instance, in wrongful dismissal instances where there are claims of intent to cause grief, as was the case in Prinzo v. Baycrest Centre for Geriatric Care, 2002 CanLII 45005, the Court of Appeal stated the following:
[45] concerning the prerequisite that the lead be determined to deliver hurt, McLachlin J. found at para. 55 that this requirement was met because “[i]t was clearly foreseeable that the accusations of theft that the defendant made against the plaintiff would cause her profound distress” was the basis for the decision. Apparently the necessity that the direct be determined to create hurt is met where the entertainer wants to deliver the results that follow from the demonstration, or on the other hand assuming the outcomes are known to be considerably sure to follow: Linden, Canadian Misdeed Regulation, seventh ed. ( Ontario: Markham Butterworths, 2001) at p. 34; Klar, supra, at p. 29; Fridman, The Law of Misdeeds in Canada (Toronto: Carswell, 1989) at p. 53.
[46] Concerning the prerequisite of a “noticeable and provable sickness” apparently the shortfall of a clinical master won’t really be lethal. McLachlin J. wrote in Rahemtulla, supra, at para. 56: ” I am satisfied, despite the lack of expert medical evidence, that the plaintiff experienced physical illness symptoms in addition to depression as a result of Mr. Flack’s (her employer’s) accusations.”
Formal medical evidence serving as the “proof” of stress damage is less common in circumstances involving other causes of action since stress injury is assumed. It seems sense that this would occur most often when the source of the action—such as “nuisance by neighbor”—involves the intention and desire to cause stress. For this reason, it is scarcely debatable whether a victim of intentionally stressful activities did not produce tension. In the cases of Deumo v. Fitzpatrick, 2008 O.J. No. 3015 and Rathmann v. Rudka, 2001 CarswellOnt 1206, the courts declared the following: in situations where stress would be expected and hence presumed, compensation for stress injury was awarded without medical proof.
I believe that the smoke caused physical harm to both of them. It’s not necessary to be a doctor to reach that judgment, however I’m not sure how much without medical proof in each situation. In my opinion, any relief resulting from the pain and suffering should be included under the category of nuisance and loss of use and pleasure of the property. Even though the symptoms were not really severe, they were undoubtedly persistent, bothersome, and unsettling. They contribute to the loss of use and enjoyment of the property, but they wouldn’t significantly increase the claim’s value. The long-term effects of secondhand smoke may be uncertain.
The defendant acted in an absurd and outrageous manner. In their testimonies, Ms. Rathmann and Mr. Mark both described how Ms. Rudka’s actions disturbed and alarmed them to the point that they were afraid to step outdoors for fear of what they might discover or what may occur. They were worried that their vehicles or property might have sustained additional harm. Their dogs’ safety was a concern for them. Their connection became tense. To support the defendant’s alleged psychological impact on them, no medical testimony was presented. Such proof was not required.
Summary Comment
In order to give injured litigants with a legal outcome that appropriately seeks to make victims fully whole, it is intended that general damage awards for stress injury would occur more frequently with the aforementioned principles serving as direction for the lower courts.
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