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Proving Emotional Distress with Accident Lawyers in Ottawa, Ontario

Emotional distress is apparent and significant in just about every personal injury case. A claim may be possible as part of pain and suffering damages, also known as general damages or “non-pecuniary damages.” These damages are deemed “general” because they cannot be measured exactly, are not economic and are unique to each individual. What may be distressing to someone else may not be distressing to you, and vice versa.

What is Emotional Distress?

Emotional distress is described as the psychological impact or mental pain your injury has on your daily life. Emotional distress has been recognized in personal injury claims, often with a combination of effects. Symptoms include: sleep disturbances, sleep loss, anxiety, fear, short temper, aggressiveness, compulsive behaviour, memory issues, dramatic mood swings, humiliation, crying, lethargism, weight gain, weight loss, loss of sexual desire, disengaging from social activities, and bouts of depression. Emotional distress is a very subjective type of damage, and it is different for each person and for each injury sustained.

Emotional Distress Claims

Most claims for emotional distress are due to negligent infliction, whereby the distress can be proven to be the direct result of a physical injury from a negligent party’s action. In determining fair compensation in accordance with the facts of a particular case, the courts consider factors such as your age, the nature of the injuries, the severity and duration of pain, and the level of the disability. The amount and availability of such damages is subject to the upper limit for such an award established by the Supreme Court of Canada in 1978. The cap established for non-pecuniary damages, adjusted for inflation, is currently near $360,000, but only for the most severe cases. Under the law, you will already be fully compensated for future loss of income and future care costs. Further, such damages are not exactly compensatory as no money can provide restitution but is awarded to make life more endurable.

If your claim for emotional distress arises from a motor vehicle accident, it must meet a certain “threshold” and is subject to a $30,000 deductible unless you have already purchased additional insurance or your award exceeds $100,000. In order to pass the threshold for pain and suffering, the injuries sustained must have resulted in either:

  • Permanent serious disfigurement (e.g., loss of a limb or scars) or
  • Permanent serious impairment of an important physical, mental or psychological function

If you do not meet this threshold, you cannot make a claim for non-pecuniary damages from a motor vehicle accident, but your claims for loss of income and loss of earning capacity will not be affected; you may still have a successful personal injury lawsuit resulting in damage compensation.

In very limited circumstances, compensation for intentional infliction of emotional distress may also be possible if the distress level is very high or severe and the defendant’s conduct was either “grossly” negligent, reckless, or clearly intended to cause emotional distress, as well as physical harm. Road rage automobile collisions may be one such example. In these types of cases, your recovery for pain and suffering could be significantly higher.

The Importance of Documentation

A successful claim for emotional distress will require documentation of the symptoms experienced. You need to be able to demonstrate that your emotional distress is ongoing, affects your life daily, and is directly related to the physical injuries the defendant caused you to suffer. For example, if you were already being treated for depression prior to the accident, your claim for emotional distress damages is not precluded but becomes more complex. Insurers have a history of denying claims for emotional distress, even where medical evidence is available, without reason. A good personal injury lawyer can affect the outcome significantly.

Documenting your feelings about the accident, your injuries, and the impact on your life in a daily journal may increase your potential to recover emotional distress damages. You also need to tell your doctor about any psychological symptoms you have experienced since the accident that caused your injuries. Because emotional stress is difficult to prove, it is recommended that you see a doctor who has experience with your conditions to be able to certify the severity, permanence, and disabling impact of the stress. Medically documented emotional distress is critical in a personal injury lawsuit and a claim with an insurance company.

Emotional distress is a big part of being injured. Yet, there is often skepticism heaped upon any claim for emotional distress despite physical injuries often having serious psychological effects. Fear of driving after a car accident, anger management issues at home, or depression during a long rehabilitation – these emotional stressors and others are very real and distressing, and they may also be compensated as part of your injury claim. Hire Ottawa, Ontario accident lawyer you can find can substantially help your case. Call Howard Yegendorf today at 613-237-5000 to book your free consultation.