In personal injury claims, the focus has traditionally been on physical injuries, with the legal system adept at compensating victims for their visible wounds. However, recognizing mental injuries and their significant impacts has gained long-overdue attention. Across the country, the legal system is evolving and adapting to support better those affected by the life-altering consequences of various mental and psychological injuries.

This blog will shed light on the legal challenges of recovering compensation for psychological injuries and the avenues available to those injured due to another person’s negligence. Additionally, we examine how mental injuries are assessed and classified, recent changes in the law, and how to build a strong case for compensation.

Common Psychological Injuries

There are a wide variety of psychological injuries that a person may sustain as a result of a personal injury accident. In many cases, mental and emotional injuries can have long-term, negative impacts on daily activities in a way you have never experienced before and can be more difficult to overcome than physical injuries. Therefore, it is important to establish the effect of these impacts to recover fair compensation. Some common injuries that personal injury plaintiffs have successfully recovered damages for include:

Supreme Court of Canada Recognizes Psychiatric Illness 

The Supreme Court of Canada established the leading decision and test governing compensation for psychological injuries in the 2017 case of Saadati v. Moorhead. This case is explored in contrast to a recent decision from the Ontario Court of Appeal in Bothwell v. London Health Sciences Centre. It distinguishes between a mental injury and psychological upset, which is not compensable. 

Supreme Court of Canada Rejects Notion that Recognized Psychiatric Injury Necessary to Prove Mental Injury

In Saadati v. Moorhead, the Supreme Court of Canada restored the trial judge’s award of damages for mental injury based on lay witnesses’ testimony, explaining that the appellant’s personality had substantially changed following an automobile accident. The reversal of the trial judgment was based on the view that the recovery of damages for mental injury required expert medical opinion evidence of a recognized psychiatric illness. However, Justice Brown of the Supreme Court of Canada explained that the Court had never required claimants to show a recognizable psychiatric illness as a precondition to recover damages for mental injury. 

The appellant had suffered chronic pain since a car accident in 2003. In total, he was involved in five accidents between 2003 and 2009. The original pain was aggravated by the third accident in 2005. The issue required considering whether the claimant had established that he had suffered damages due to the accident. The common law had previously barred recovery for mental injury absent physical injury. However, this was eventually lifted, although courts continued to impose conditions on recovery beyond those applied to claims for negligently caused physical injury. In the eyes of the law, liability for negligently caused mental injury was conditional upon claimants having had a reasonable fear of physical injury to themselves or their family. 

In Mustapha v. Culligan of Canada Ltd., an award of damages for mental injury was dependent upon the claimant satisfying the criteria applicable to any successful action in negligence. In that case, the Chief Justice explained that personal injury at law connotes serious trauma or illness such that the law does not recognize upset, disgust, anxiety, agitation or other mental states that fall short of injury.  To recover compensation, the mental injury must be serious and prolonged and rise above the ordinary annoyances, anxieties and fears that society routinely accepts.  

In Saadati v. Moorhead, the Supreme Court of Canada acknowledged that the view that something more should be required was founded not on legal principle but rather on policy premised upon perceptions of psychiatry and mental illness. As such, there was no reason for the courts to believe that constraints imposed on claimants alleging physical injury would be less effective in weeding out unworthy claims for mental injury. The Supreme Court outlined various factors for the trier of fact to consider when determining whether a plaintiff has suffered a mental injury. Specifically, the Court considered “how seriously the claimant’s cognitive functions and participation in daily activities were impaired, the length of such impairments and the nature and effect of any treatment.”

Ontario Court of Appeal Finds Feelings of Anger and Frustration are Insufficient to Support a Finding of Mental Injury

In Bothwell v. London Health Sciences Centre, the Ontario Court of Appeal recently considered the issue of whether persistent feelings of frustration and anger, without more, were a compensable mental injury in personal injury law. The claimant was a paramedic with Crohn’s disease, requiring him to undergo several surgeries. While recovering in the post-anesthesia care unit in 2011, his blood pressure began to drop, and the doctor ordered that he be administered Voluven, a blood volumizer. A nurse erroneously administered the anticoagulant Heparin instead. When the claimant later learned of the administration of Heparin, he was shocked, frustrated, and angry. His feelings of anger and frustration continued up to trial in 2020. The only evidence of a mental injury came from the claimant and his wife, and no expert evidence was provided to support the claim. 

The trial judge accepted the claimant’s evidence that he was frustrated and angry about the medication error and that those feelings persisted whenever he attended the hospital during his work as a paramedic. There was no evidence to indicate that the claimant had received treatment for his emotional distress. However, the trial judge concluded that his feelings were objectively and subjectively serious and went beyond ordinary annoyances. 

Distinguishing Mental Injury From Psychological Upset

At the Ontario Court of Appeal, Justice Gillese concluded that the trial judge erred in law by failing to consider relevant legal considerations. Justice Gillese explained that the Supreme Court of Canada provided a clear direction in Saadati v. Moorhead that, in distinguishing mental injury from psychological upset, the trier of fact must consider:

  • the claimant’s psychological upset;
  • how seriously the claimant’s cognitive functions and participation in daily activities were impaired, the length of such impairment, and
  • the nature and effect of any treatment sought and taken concerning the psychological upset. 

The Court of Appeal determined that the trial judge failed to consider the degree of disturbance the claimant experienced due to his psychological upset by failing to consider what impact his continuing anger and frustration had on his cognitive functions and participation in daily activities. He also failed to consider the absence of evidence that the claimant sought treatment for those feelings. As a result, the Court of Appeal did not owe the determination that the claimant had suffered a compensable mental injury any deference, and the claimant’s anger and frustration were sufficient to support an award of damages for mental injury. 

Is Expert Evidence Necessary?

In Saadati v. Moorhead, Justice Brown was careful to avoid any suggestion that expert evidence could not assist in determining whether mental injury had been established, noting that it will often be important to consider how seriously the claimant’s cognitive functions and participation in daily activities were impaired, the length of such impairment and the nature and the effect of any treatment. Expert evidence will often help determine whether the claimant has established a mental injury. However, it is not required as a matter of law. 

In Bothwell, Justice Gillese accepted that expert medical evidence is not necessary to prove a mental injury but emphasized that it was made clear in Saadati v. Moorhead that where claimants do not adduce relevant expert evidence “they run a risk of being found to have fallen short.” Justice Gillese acknowledged that the medication error was a deeply disturbing event for the claimant and his wife. However, Justice Gillese emphasized that feelings of anger and frustration, without more, are evidence of psychological upset, not injury. 

Contact the Personal Injury Lawyers at Tierney Stauffer LLP for Trusted Advice on Psychological Injury Claims

At Tierney Stauffer LLP, our experienced personal injury lawyers provide compassionate legal advice to those who have sustained serious personal injuries due to someone else’s negligence. Whether you were involved in a car, bike, or pedestrian accident, it is important to obtain legal advice as soon as possible to ensure that your rights are preserved and you are positioned to obtain the best possible outcome. We can provide you with the information you need to make informed decisions throughout the claims process so that you can recover financially and move forward after an accident.  

Call us at 1-888-799-8057 or contact us online to set up a free consultation with our personal injury team member.


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