When to Call a Car Accident Lawyer

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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I was a cyclist involved in a car accident. What are my rights?

In short, the same as those of a driver or passenger. Liability may be handled differently, but the cyclist maintains a right to claim against the at-fault driver and seek benefits from the applicable insurer. Your car insurance is meant to provide accident benefits if you're involved in a car accident. It does not matter whether you were actually driving a car. As long as you have car insurance, your accident benefits should kick in. If you don't have car insurance, the at-fault driver's insurance will provide accident benefits. Either way, you should be covered by a policy. If neither of you has insurance, there's still the motor vehicle accident fund which acts as a safety net in cases where insurance is not available.

Typically, there's an assumption that the cyclist was not at fault. This does not mean you can pedal around with no regard to surrounding traffic. You still have to be diligent and you still owe yourself an obligation to proceed with reason. Any contribution found on your behalf will reduce the value of your claim. You can be deemed contributorily negligent if you don't wear the proper protective gear, or if you don't abide by the rules of the road.

Seasonal changes in traffic will often give rise to increases in car accidents involving cyclist. A good portion of the driving population does not properly adapt to these changes. This causes drivers to make assumptions they shouldn't make: disregarding their blind spot, failing to keep track of cyclist in the bike lane, opening their doors without thinking of oncoming cyclist. Unfortunately, the injuries are often devastating. Even with protective gear, the force of direct impact may leave the cyclist with serious, life-changing and permanent injuries.

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What if I or the other driver don't have insurance?

‍Answer: Ontario's auto insurers provide accident benefits and liability insurance. The accident benefits claim and the tort claim both work together toward covering your losses stemming from the accident. So, what happens when one of the parties involved doesn't have insurance? I've listed the most common scenarios:

A rear-ends B. A doesn't have insurance. B does have insurance:

The standard Ontario insurance policy includes coverage in-case the at-fault party is uninsured or underinsured. B's insurer would be on the hook for the accident benefits and the damages caused by the at-fault party as well (tort claim).

A strikes B (a cyclist). A has insurance. B doesn't have insurance:

In this case, it's up to A's insurer to provide both accident benefits in addition to compensation for the damages caused by A.

A is a pedestrian struck by driver B. A is injured. Neither A nor B have insurance:

In this circumstance, plaintiffs turn to the Motor Vehicle Accident Claims Fund. The fund may provide:

• Accident benefits
• Death and funeral benefits
• Compensation for personal injury or property damage (except for vehicles)

Although the fund does not work exactly like an insurer, it does provide a safety net for injured parties with no accessible insurance policy.

Resources:

• https://www.ontario.ca/laws/statute/90i08
• https://www.ontario.ca/laws/regulation/100034

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