In order to succeed in a claim for mental injury due to negligence, a plaintiff must prove that the defendant breached the standard of care owed to the plaintiff, that the plaintiff sustained damage, and that the damage was caused by the defendant’s negligence. In this article, Andrea discusses a recent Supreme Court of Canada finding that a diagnosed psychiatric illness is not necessary to prove a mental injury claim.

Medical malpractice cases sometimes involve deeply personal issues involving the plaintiff’s behaviours and beliefs. As advocates it can be easy to downplay or even entirely overlook the client’s responsibility to protect themselves from harm. When you first meet a potential client and consider both the likelihood of success and the potential compensation for damages suffered, you must consider the potential for a contributory negligence defence, which can have a significant impact on the outcome of your case.

The law of adverse inference allows a court to presume that a court has not called a certain witness because that witness would not have helped the party’s case. In medical malpractice cases, an adverse inference is often sought against a plaintiff who fails to call his or her treating physician as a witness. This article discusses the factors a court will consider in determining whether to draw an adverse inference against a plaintiff in these circumstances.

In tort actions a plaintiff who has suffered a loss due to negligence has a “duty to mitigate” the loss; the plaintiff cannot recover from the defendant damages which he could have avoided by taking reasonable steps.