What is a Compensable Mental Injury?

  • October 05, 2023
  • Sudevi Mukherjee-Gothi

What are the factors required to demonstrate a compensable mental injury?  Evidence from friends and family will be accepted, and there is no necessity of a medical expert.  However, the Plaintiff must show that they have sustained “a serious and prolonged disruption that transcended ordinary emotional upset or distress." 

In Bothwell v. London Health Sciences Centre, the Court of Appeal provides some greater clarity to this issue.  Gillese J.A. writes the decision, asking:

What legal principles did the Supreme Court of Canada establish in Saadati v. Moorhead2017 SCC 28, [2017] 1 S.C.R. 543, for determining whether a claimant has demonstrated a mental injury? Are persistent feelings of frustration and anger, without more, a compensable mental injury?


Craig Bothwell had undergone a number of surgeries related to his Crohn’s Disease.  After a surgery on September 22, 2011, he was accidentally administered an anticoagulant, Heparin, instead a blood volumizer, Voluven.   Unfortunately,  he required follow up surgery, as a result of the internal bleeding caused by this error.  Mr. Bothwell and his wife are paramedics and were aware of the side effects from the error and commenced an action.  As part of the Claim, he sought damages for sensory loss, nightmares, emotional distress, anxiety, depression, and psychological injury as a result of the erroneously administered medication.  It was ultimately decided that Mr. Bothwell was hemorrhaging prior to the medication error and  would have required additional surgery in any event.  This aspect of the decision was not appealed.

However, the trial judge did not address the second causation issue; whether the medication error had caused Mr. Bothwell a mental injury.  A second decision was then released finding in favour of the Plaintiff.  It was found that “Mr. Bothwell’s feelings were objectively and subjectively serious and went beyond ordinary annoyances."

It was the second decision, that Mr. Bothwell suffered a mental injury caused by the administration of Heparin, which was under appeal.

The Appellants did not challenge the trial judge’s finding that Mr. Bothwell’s feelings of anger and frustration about the medication error remained with him to the date of trial. They challenged that those feelings amount to a compensable mental injury.