In the 2020 British Columbia Supreme Court case, Kempton v Struke Estate, 2020 BCSC 2094 (CanLII) (Struke) the trial judge granted the plaintiff $200,000 in  pain and suffering damages. An article by Canadian Lawyer Magazine, sheds some light on how courts consider the impact of a plaintiff’s psychiatric injuries in assessing damages. You can read the full article here (link).

In Struke, the plaintiff was driving a tractor-trailer when he collided with the defendant, who was killed instantly. The plaintiff, who experienced minor injuries, remained trapped in his vehicle until first responders arrived. In the five years since the accident, the plaintiff has experienced a host of psychological symptoms related to post-traumatic stress disorder (“PTSD”), such as guilty thoughts, psychological distress, anxiety attacks while driving, anxiety around other people, sleeping troubles and recurring nightmares, and flashbacks of the accident. Additionally, the plaintiff could no longer watch television as “any depiction of violence or a car accident on the news or in a programme” could serve as a trigger for his PTSD (Struke, at para 114).

The plaintiff sought compensation for the PTSD and physical injuries that he experienced as a result of the accident. Through testimonies from the plaintiff’s wife, medical experts and the plaintiff himself, the court concluded that the accident caused the PTSD and “affected every aspect of [his] life” (Struke, at para 107). The plaintiff was awarded $200,000 to compensate him for pain and suffering, damages for past and present loss of earnings and future costs of care, as well as a number of other monetary awards, for a total of $1,594,469.45 (Struke, at para 201).

The trial judge rejected the argument regarding the plaintiff’s failure to mitigate by not seeking treatment for his PTSD. Rather, the trial judge considered the effects of the PTSD as the reason for this. The judge also recognized the permanence of his condition and considered the low likelihood of the treatment providing any improvement of his condition (Struke, at para 200).

Importantly, this case demonstrates that mental health conditions are an important factor when assessing damages to compensate for a person’s pain and suffering arising from a legal issue. Evidence to establish the extent and scope of the impact a mental health condition has a person will be required to substantiate the losses they have suffered. Often our clients are profoundly impacted because of the discrimination, harassment, and/or treatment they face. We have experience advocating for their fair and full compensation.

You can learn more about our approach here (link).  If you have a legal issue and would like some assistance, please reach out to the bakerlaw team to see how we can help (link).