5 Tips To Prevent Winter Car Accidents

Somatic Symptom Disorder - What is it and how can we prove it?

The Supreme Court of Canada (SCC) recently crystallised the importance of considering how psychiatric injuries accompany physical ones. In Saadati v. Moorhead, Saadati was in a car accident and suffered psychological and emotional trauma. He was awarded damages for mental injury based on the evidence of a lay witness who explained that Saadati’s personality changed post-accident. Expert evidence was not necessary, and the award did not need an attached “recognizable psychiatric illness.” The court found that requiring mental injury to pass the threshold of medical-expert testimony showing a “recognizable psychiatric illness,” while not requiring the same “classificatory label” of physical injury, would amount to unequal protection for those with a mental injury.

This SCC decision confirmed that the law of negligence accords identical treatment to mental and physical injury. This is a decision that is often looked at, as of late, with an overwhelming increase in the diagnosis of somatic symptom disorder (SSD). In dealing with my fair share of personal injury cases, I’ve started to notice this increase. The criteria for the illness remain broad, and like so many other cognitive/psychological conditions, it tends to be met with quite a bit of push back from defendants.

The DSM-5 characterises the condition as follows:

“SSD is characterised by somatic symptoms that are either very distressing or result in significant disruption of functioning, as well as excessive and disproportionate thoughts, feelings and behaviours regarding those symptoms. To be diagnosed with SSD, the individual must be persistently symptomatic (typically at least for 6 months).”

I tend to see this diagnosis when clients are suffering from longstanding subjective physical symptoms. The client is in extreme physical distress, but there’s no explanation of where this additional distress comes from. The pain felt by the client is otherwise disproportionate to the actual seriousness of the injury. I’ve always viewed it as an uncontrollable dispute between the body and the mind. I say this because typically the body is ready to be healed but the mind isn’t.

The proof isn’t as solid as we wish it was. The driving force of the diagnosis is the client’s own reaction to assessment and medical investigation. An SSD case can often be met by an assumption of “fake” injuries or plaintiff malingering. However, the SCC worded it properly when stating that the trier of fact should “not [be] concerned with the diagnosis, but with symptoms and their effects.” This point should always be emphasised when dealing with SSD cases. Focusing on the genuine statement of lay witnesses and providing a clear historical approach of the impact caused by the negligent act, remains the best means to put forward a strong SSD case.

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What should I do if I am injured and someone else is responsible?

As a litigation Lawyer, I am often retained weeks, months or even years after a client has suffered an injury as a result of another’s negligence. Ideally, if you are injured as a result of someone else’s negligence, you should contact a Lawyer promptly to review the circumstances of the incident. I routinely meet people for a no obligation consultation to discuss matters such as liability, limitation periods and evidence that must be preserved.

At the scene of the accident, you should take several steps immediately, whether it is a motor-vehicle accident or a slip and fall, a dog bite or injury caused by a defective product:

1. Identify who is responsible (i.e. exchange of information). If possible, take photographs of obvious material damage (in the case of a motor vehicle collision, take photos of the other party’s car as well as your own);

2. Record via photographs or notes how the incident occurred (e.g. slip fall on uneven pavement); and

3. Identify and obtain contact information of any witnesses to the incident – this is crucial, as witnesses can be lost forever if not identified at the scene.

As a Lawyer representing injured people, I have found that taking these easy steps can be the difference between having a long drawn out fight about legal liability and moving to a meaningful discussion about compensation reasonably quickly.

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Three weeks ago I was at a retail store and tripped over winter matting near the entrance.  I fell and broke my wrist.  Today an Insurance adjuster called me.  He said I was responsible to look where I was walking but he offered me $5000.00 to help me out as I have been off work.  I am on sick leave and have not lost any income.  Is there any reason not to just take the money?

Plenty of Reason.  Leaving aside what happened, and what you might be entitled to recover as a result of your injuries, it is always a good idea to consult with a Lawyer before taking a settlement proposed by an insurance company.   Insurance adjusters work for Insurance companies and they do not approach a settlement based on what you are entitled to.  They offer money based on the risk of what you might receive by way of an award.  Generally, they will try and settle a claim or potential claim for as little as they reasonable can in order to close off a risk.

‍A Lawyer will work for you. Many Lawyers offer a free consultation.  I find I ask a lot of questions and do a lot of listening during a consultation.  I try to give my client an understanding of the legal issues arising in their circumstances, and what the options are going forward.

‍Assert your rights. Over the years I have come to understand that people almost always benefit from at least consulting with a Lawyer before trying to settle with an insurance company.    There is a significant imbalance between a lone individual and a huge insurance company.  A Lawyer has the knowledge to help level the playing field.  In my experience insurers will see a greater risk when dealing with an injured person who is represented by a Lawyer.  Greater risk to insurers leads to better settlements.