Psychiatric Damage Intangible but Recognized as a type of Injury

April 26, 2010, Kitchener, Ontario

Posted by: Robert Deutschmann, Personal Injury Lawyer

In a recent decision by the Ontario Court of Appeal (Frazer v Haukioja) the OCA upheld a trial judge’s award that exceeded $2.6 million in damages and costs when a motorcyclist suffered psychiatric injuries that were related to the failure of his doctor to properly and fully advise him of the potential consequences related to the minute ankle fracture that he suffered in the accident.

Frazer was a successful school teacher who lost control of his motorcycle when he failed to maneuver around a curve in the road. As a result he suffered injury to his left ankle.   The doctor diagnosed a left ankle fracture and soft tissue injury to his right ankle. A cast was placed on the left ankle. Subsequently a radiologist noticed a talar fracture. Just over a month after that Dr. Haukioja told Frazer about the talar fracture. The doctor described the fracture as tiny, barely visible and not requiring any further treatment. However, Frazer obtained information from two other doctors later that month. He was told that the fracture was more serious and one doctor warned him about complications such as arthritis, avascular necrosis and that he might require surgery to fuse his ankle joint. Following the receipt of this information, Frazer became hyper alert and hyper aware regarding why Dr. Haukioja had not advised him about these issues and permitted to continue to walk on the foot risking further and serious injury. 
The Ontario Court of Appeal considered the test laid down by the Supreme Court of Canada in Mustapha v Culligan of Canada Ltd. (2008) where a hairdresser had brought a claim for psychiatric damages suffered when he observed a fly in a water bottle supplied by Culligan. The SCC, after providing a test to determine when psychiatric damages could be compensable, held in Mustapha that Culligan could not be found liable as they could not reasonably have foreseen the psychiatric injury suffered by their customer upon finding the fly.
The OCA noted that the test in Mustapha for finding liability under the tort of negligence required the following: (1) that the defendant owed the plaintiff a duty of care; (2) that the defendant’s behaviour breached that duty of care; (3) that the plaintiff suffered damage; and (4) that the damage was caused, in fact and law, by the defendant’s breach. In the Frazer case the OCA agreed unanimously with the trial judge that all 4 conditions were met. 
Dr. Haukioja was not found to be negligent in his treatment of Frazer. In the Frazer case the OCA agreed with the trial judge that the psychiatric damage was caused, in fact and in law, by Dr. Haukioja’s non disclosure regarding the ankle injury and it implications. It is in the second part of the test that differentiated this case from Mustapha. The OCA agreed that unlike the facts in Mustapha, the nature of the relationship between Frazer and Dr. Haukioja, patient and doctor, that Dr. Haukioja should have contemplated that a breach of trust would have consequences for Frazer’s mental health. The OCA agreed that it was foreseeable that the non-disclosure could give rise to the type of psychiatric injury that Frazer actually suffered. 
The OCA agreed with the trial judge that psychiatric damage is now accepted and recognized as an injury that can be compensated in a negligence action. The trial judge also noted that Frazer had suffered a recognizable psychiatric illness upon which a claim could be founded. The OCA noted that the trial judge had properly established causation, based on the psychiatrist’s evidence, that but for the doctor’s negligence Frazer would not have suffered psychiatric harm. Further, there was no evidence that the psychiatric injuries were the result of Frazer’s pre-existing hypersensitivity. 
Posted under Personal Injury, Fractures, Motorcycle Accidents, Treatment

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