Personal injury lawyers can help with emotional distress lawsuits ǀ Credit: Vitalii Vodolazskyi - stock.adobe.com
Note: The term ‘emotional distress’ is a very vague term and not a specific tort. Rather, it falls into the overarching category of psychological/psychiatric and mental illness. This article will largely look at emotional distress from that perspective.
In a snap of a finger, one’s life may drastically change because of another’s wrongdoing. And these instances do not only affect a person’s physical needs, but also their mental disposition. To seek compensation, an emotional distress lawsuit may be filed in court.
Here, we’ll discuss the legal considerations that a plaintiff may need to know when filing for such a lawsuit. This article can also be used by defendants in emotional distress lawsuits. For both parties, we’ll discuss how a personal injury lawyer can help.
What is an emotional distress lawsuit?
Emotional distress lawsuits are civil cases that plaintiffs can file when they suffer — as the name suggests — emotional distress caused by the defendants. This includes mental anguish or pain and suffering resulting from an accident due to the defendant’s:
- negligence (e.g., vehicular accident, slip-and-fall)
- intentional acts (e.g., breach of the defendant’s legal obligation)
When filing a case for emotional distress (or when defending against one), you’ll need a personal injury lawyer. These lawyers have the knowledge and expertise on handling these types of cases, what laws apply, and how to successfully prove (or disprove) them in court.
Watch this video from Canadian Lawyer, one of our sister publications, of an interview of one of the best personal injury lawyers in the country, if you want to know more about what they do:
Looking for lawyers to help you with your emotional distress lawsuit? Check out our directory of the best personal injury lawyers in Canada as ranked by Lexpert.
Causes of emotional distress lawsuit
“In Canda, a person can make a claim for their psychological or psychiatric injuries or impairments that are causally connected to a negligent act,” says Stacey L. Stevens, a partner at Thomson Rogers LLP. “It can be solely a psychological injury or in combination with a physical injury.”
Stevens adds that a claim for psychological or psychiatric injuries or impairments generally manifests as several conditions, including:
- anxiety
- depression
- post-traumatic stress disorder (PTSD)
- nervous shock
In other cases, an emotional distress lawsuit is caused by the negligence of the other party, linking it to torts cases. This is why emotional distress lawsuits are cases where damages are awarded to the plaintiff (the one who suffered because of a wrong) for all the traumas they’ve suffered.
Types of damages in torts cases
Under Canada’s personal injury laws, there are two main types of damages: compensatory and non-compensatory damages.
First are compensatory damages, which are compensation to the plaintiff for the harm that a defendant caused them. The following are the two types of compensatory damages:
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general damages: the non-monetary part of a plaintiff’s loss, which includes emotional distress and pain and suffering; may also include moral damages
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special damages: these are the actual and financial amount that the plaintiff spent to recover from the wrongdoing of the defendant; also called pecuniary damages
On the other hand, non-compensatory damages are those that may be awarded by the court depending on exceptional circumstances of the case. This type of damage includes exemplary, nominal, aggravated, and punitive damages.
Causes of emotional distress
Emotional distress is not only caused by an accident on the road or any other unforeseen event. It can also be caused by intentional acts by the defendant, whose goal is to inflict some kind of pain and suffering on the plaintiff.
In sum, here are some of the common causes of emotional distress, for which a lawsuit may be filed for:
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accidents: although it can be argued that an accident is nobody’s fault, there are instances where an accident is caused by the defendant’s negligence or violation of a law (e.g., violation of traffic laws leading a vehicular accident, or negligence in their duties as a landlord, causing a slip-and-fall accident)
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employment issues: still because of the negligence or violation of labour and human rights laws by an employer or a supervisor, employees may also experience emotional distress; this includes cases of wrongful dismissal, assault (physical or sexual), workplace harassment, unsafe working conditions, or discrimination
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breach of contract: whatever the contract may be, such as a commercial contract or a verbal contract, its material breach which causes general and special damages to the plaintiff may be a cause for an emotional distress lawsuit
Whether an emotional distress lawsuit is caused by intentional acts of the defendant or their negligence, it gives rise to a cause of action for plaintiffs to sue them in court.
What is required for emotional distress lawsuits to be filed in court?
The most important consideration when it comes to emotional distress lawsuits is that the plaintiff must successfully prove that they suffered mental damages. This is why these types of cases are difficult to prove or require more diligence during the case build-up.
However, it’s not altogether impossible to prove such cases. Case law proves to us that these cases may work, given that the elements of torts cases and other legal considerations are proven, as applied to emotional distress lawsuits.
Elements of emotional distress lawsuits
When filing an emotional distress lawsuit, Stevens says that there are legal elements that must be established, including:
- duty of care: the defendant must have owed a duty of care to the plaintiff
- breach of duty: the defendant must have breached this duty through their actions or negligence
- causation: the breach must have directly caused the emotional distress
- damages: the plaintiff must have suffered actual harm as a result
Each of these elements must be supported by admissible evidence. Otherwise, the case falls due to insufficiency or for failure to prove the plaintiff’s claim. It is on these elements that a claim for emotional distress will revolve, until a decision is made by the court.
When proving emotional distress lawsuits, Stevens adds some statutory and common law rules to consider.
“In Ontario, in motor vehicle accident cases, the test for receiving an award for general damages for pain and suffering is set out in section 267.5(5) of the Insurance Act. This provision requires the person to have sustained a permanent disfigurement or impairment of an important physical, mental or psychological function.
“The Supreme Court of Canada in Saadati v. Moorhead, 2017 SCC 28 (CanLII), [2017] 1 SCR 543 (a case that originated in British Columbia) rejected the argument that a recognized psychiatric injury is required.”
She adds that the Court “went on to conclude that in order to establish a mental injury the Plaintiff is required to prove a serious and prolonged disturbance that rises above ordinary annoyances, anxieties, and fears.”
“Emotional distress”
It's in the fourth element where the plaintiff must lay down the emotional pain that they allegedly suffered. Because emotional harm may vary from each person, it’s important to establish it specifically and not just in broad terms.
This video generally talks about emotional distress when it comes to personal injury claims:
You can also look for personal injury lawyers using our directory of the Lexpert-ranked best law firms in Canada for personal injuries.
Severity of the mental distress
When proving these elements of an emotional distress lawsuit, it’s important that the plaintiff show the significant effects on their lives. It's not enough that the plaintiff suffered hurt feelings. They must also prove that there are life-changing effects because of the grave wrong done by the defendant.
For instance, the plaintiff must show how the emotional distress has already affected their daily life, work, and personal relationships. In legal terms, it may refer to the ‘loss of life enjoyment’ by the plaintiff caused by the defendant.
Hence, there must be an established connection (the element of causation) between the effects of the mental distress, the mental distress itself, and acts or omissions by the defendant. To put it simply, the plaintiff suffered emotional distress because of the defendant, which resulted in these damages.
How can lawyers help clients who want to file an emotional distress lawsuit?
From the perspective of a plaintiff, having the assistance of a personal injury lawyer is important for their case. This is because in an emotional distress lawsuit, the plaintiff has the burden of proving the elements mentioned above.
“Clients need to be made aware that this type of claim will require disclosure of their medical records along with any psychological/psychiatric records that may have been in existence before the injury occurred as well as after the event,” Stevens says.
“This can come as a shock, especially if they have a pre-existing relationship with a psychologist or psychiatrist. It does not matter why they were seeking treatment prior to the incident.”
She adds that clients should be encouraged to seek medical attention and follow their doctor’s recommendations.
“They also need to be aware that they will likely be required to attend examinations with experts in that field at the request of their own lawyer and the defendants.”
Below are just some of ways on how personal injury lawyers can help both the plaintiff and the defendant in a case of emotional distress:
Limitation period for emotional distress lawsuits
Stevens highlights the limitation periods as one of the rules when filing an emotional distress lawsuit.
“In most cases, the time limit for filing a claim for injuries arising out of a negligent act is two years although for certain claims, such as sexual assault, the limitation period is extended.”
Preparing your evidence
As already pointed out, each element of an emotional distress lawsuit must be supported by admissible evidence. It can be in the form of:
- expert testimonies from the plaintiff’s doctors
- testimony from the plaintiff themselves
- document evidence, such as medical reports
The most basic example of this is when proving how much the defendant should pay the plaintiff, which is called the personal injury payout. There should be a clear legal basis and evidentiary support for the amount that the plaintiff is claiming.
While the legal basis may be a previous case that has similar facts to the case at hand, the evidence, however, must come from the plaintiff’s own. Here’s where a personal injury lawyer can help; they can determine which evidence is strong enough to prove one’s case.
On the other hand, the defendant in an emotional distress lawsuit can refute the amount that the plaintiff is claiming, simply because it’s not supported by evidence. Further, they can also contend that the amount is unreasonable, bloated, or even unconscionable.
Computation of the claimed damages
While emotional distress lawsuits are mainly about claiming general damages against the defendant, it may also include special damages (e.g., lost and future income). Either way, the law has set up some standards on how damages should be calculated:
- must be consistent, fair, and rational
- must be supported by common law or a specific statute
- must consider the contributory negligence of the plaintiff
Settlement between the plaintiff and defendant
As with any other civil cases, an emotional distress lawsuit may be settled out of court, or even before it reaches the court. Typically, negotiations and mediations may precede the filing of the lawsuit.
During this process, it’s important that plaintiffs get what they deserve, without any lowballing by the defendant, who is usually represented by their insurance company. Plaintiffs must also be dealt with fairly all throughout the process.
All these are possible only if they’re represented by their own independent counsel, such as a personal injury lawyer.
Type of damages to claim
Based on the evaluation of one’s personal injury lawyer, they’ll be able to determine what type of damages the plaintiff can file for. Whether it’s for general or special damages, or both, a lawyer would be able to tell what the case is worth for.
Damages, especially special damages, may be both for what the plaintiff has already spent, plus what they’ll be spending in the future. These are applicable in instances where future medical costs are yet to be done but can be initially calculated.
This means that damages for emotional distress may also include expenses for the plaintiff’s recovery process, both physically and mentally.
Emotional distress lawsuits: a relief for personal injury victims
While we can never turn back the time before that instant change in a person’s life has occurred, the law provides a legal remedy for those who are affected. However, the law also provides certain measures that claiming persons must establish. As such, the assistance of personal injury lawyers is always there, at least to alleviate the emotional distress brought by such a drastic change.
For more resources to help you when searching for lawyers for your emotional distress lawsuit, you can check Lexpert’s Rising Stars Awards for a list of Canada’s best lawyers under 40.