When a plaintiff subjectively believes their mild physical injuries are catastrophic, can they be compensated for those ‘catastrophic’ injuries?
In the recent case Agar v Leonard (2016 BCSC 1430), the plaintiff was a 39-year old woman who suffered physical injuries to her neck, back, shoulder, and hip after a collision. While these injuries were painful, they were not particularly severe or disabling. The plaintiff, however, also suffered from a psychological injury that caused her to believe her injuries were disabling. She was not a credible witness, and consistently misled medical treaters and other service providers regarding her injuries and the narrative of her recovery.
As something of an aside on the plaintiff’s credibility issues – she wasn’t merely exaggerating her level of pain, but regularly being entirely untruthful. For example, on an application for CPP disability benefits, she wrote that she was unable to carry laundry or groceries – but was photographed carrying dogs in carrying cases in the course of her very regular volunteer work with a dog rescue association. She failed to mention that same extensive volunteer work when describing how socially isolated she’d become. She lied to medical treatment providers about things that bore almost no consequence on her case – like whether she’d graduated from a particular vocational course. She also told her rehabilitation practitioners that her workplace was unable to provide accommodations, when in reality she’d never even approached her former workplace to inquire about a return to work.
After reviewing the medical evidence and the credibility issues, the Court found that regardless of what was medically indicated, the plaintiff truly believed that she was disabled and unable to function. She perceived her injuries to be catastrophic, which caused the more severe pain she was experiencing. She truly believed she could never be employed again. As Justice Hyslop writes “[i]t is real to her.” Further, the medical experts all concluded that the plaintiff’s physical injuries and experience of pain would not abate until her psychological injuries were resolved.
Justice Hyslop discussed the law on psychological injuries:
[167] This is not the first time that the court has dealt with psychological factors that have overwhelmed a plaintiff’s mild physical injuries, preventing, in this case, Ms. Agar, from achieving some kind of recovery.
[168] In Keram v. Li, 2015 BCSC 498, Justice Abrioux wrote the following:
[102] The principles to be applied in assessing claims of psychological injury are set out in Maslen at 133-135 and summarized in Yoshikawa v. Yu, [1996] 21 B.C.L.R. (3d) 318 at 325-326 (C.A.). They are:
- the pain, discomfort, or weakness must be genuine;
- the psychological problems must have their cause in the defendant’s wrongful act and not be rooted in desires for sympathy or compensation or be such that the plaintiff could be expected to overcome them through his or her inherent resources;
- the psychological problems will be found to be subjective or internal if their existence or continuation stems from the plaintiff’s desire for their existence or continuation;
- causation is not established unless the court can say whether the plaintiff really desired to be free of the psychological problems;
- identification of the symptoms as “chronic benign pain syndrome” does not resolve the questions of legal liability or the question of assessment of damages;
- it is unlikely expert opinion can resolve the ultimate questions on which these cases turn;
- psychological problems will attract damages where the psychological mechanism is beyond the plaintiff’s power to control and was set in motion by the defendant’s wrongful act; and
- evidence of psychological problems must be of a “convincing nature” but the plaintiff’s own evidence, if consistent with the surrounding circumstances, may suffice for the purpose.
This list is not intended to be exhaustive: Yoshikawa at 326.
[103] When determining whether or not a psychological injury has occurred, some expert medical evidence is necessary. The trier of fact should not rely only on a plaintiff’s own perception of disability: D.E. v. Unum Life Insurance Co. of America, 1999 BCCA 507 at para. 86.
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[105] To calculate damages owing where psychological injury is found, the Court of Appeal in Perdomo-Flores v. Gurney (1998), 49 B.C.L.R. (3d) 1 at 3 (C.A.) held:
If the plaintiff would never have suffered the problems if the accident had not occurred, or if he or she would have suffered some problems if the accident had not occurred but those problems would have been less irksome, or would have been deferred, then the plaintiff is entitled to recover damages either measured by the entire loss caused by the psychological problems if they would not have occurred at all but for the accident, or measured by the increase in the psychological problems where some psychological problems would have occurred in any event but an increase in the psychological difficulties experienced by the plaintiff, either in intensity or in time of occurrence, was brought about by the accident.
[169] Dr. Vallance has diagnosed Ms. Agar with a psychological injury. The medical evidence confirms that Ms. Agar cannot begin to heal her physical injuries until her psychological problems are resolved.
Justice Hyslop went on to award the plaintiff $110,000.00 in non-pecuniary damages, describing the plaintiff’s physical injuries as relatively mild but greatly worsened by her subjective belief in their seriousness.
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