Disability Insurance: Undercompensation of Mental Distress Damages
Disability insurance is contractual in nature. When a disability insurer denies benefits to a disabled claimant, the claimant may sue for breach of contract to recover the benefits. Additionally, the claimant may seek mental distress damages, punitive damages, and special costs. Mental distress damages are intended as compensation for the claimant’s psychological injury; punitive damages are intended to punish the insurer’s misconduct; and special costs are awarded only in unique circumstances.
This article focuses on mental distress damages. As these damages are compensatory, they are comparable in nature to damages for psychological injuries in tort; yet, mental injuries have given rise to substantially higher quantum awards in tort claims than in disability insurance cases. This disparity is only partially explained by disability insurance claimants’ pre-existing conditions. In this article, we examine this disparity and the case law through which it has arisen, and propose that this disparity has no principled basis.
Contract and Tort Law: Similar Compensatory Principles
Hadley v. Baxendale (1854), 9 Ex. 341 [Hadley], a decision of the Court of Exchequer Chamber, provided that where one party had breached a contract, the other party could claim compensatory damages arising “from such breach of contract itself, or such as may reasonably be supposed to have been in the contemplation of both parties, at the time they made the contract, as the probable result of the breach of it.”
In Fidler v. Sun Life Assurance Co. of Canada, 2006 SCC 30 [Fidler], the court applied the principles of Hadley to a disability insurance contract. The court reasoned that disability insurance contracts are “peace of mind” contracts: the insured party has entered the contract for the tangible benefit of financial payments if disabled, but also for the intangible psychological benefit of having a reasonable expectation of income security. Both parties would have reasonably contemplated these benefits at the time they made the contract. As such, if an insurer wrongfully withheld disability benefit payments, the insured’s mental distress arising from their loss of income security would be compensable, following the principle set out in Hadley.
Psychological injuries are compensable in tort claims through non-pecuniary damages. The courts have implied that the mental distress damages arising from breach of contract should be the same as those arising through a tort claim. In Mustapha v. Culligan of Canada Ltd., 2008 SCC 27 [Mustapha], the court stated with respect to damages that “[w]ith regards to Mr. Mustapha’s psychiatric injury, there is no inconsistency in principle or in outcome between negligence law and contract law.” This was followed in Lau v. Royal Bank of Canada, 2017 BCCA 253 [Lau], with the court stating “[t]he test for mental distress damages is, in principle, the same in contract and in tort.”
In Saadati v. Moorhead, 2017 SCC 28 [Saadati], the court determined that a psychiatric diagnosis was not a prerequisite for compensation for psychological injuries in tort law. The court reasoned that the damages awarded for mental injury are not based on the injured party’s diagnosis, but rather on that party’s symptoms and their effects (para 31). While Saadati was based on a tort claim, its reasoning was adopted and applied in Lau for mental distress arising from a breach of contract.
Contract and Tort Law: Similar Tests for Psychological Damages
Where an insurer has wrongfully denied disability benefits, the test for whether to award mental distress damages is provided in Fidler at paragraph 47:
The court must be satisfied: (1) that an object of the contract was to secure a psychological benefit that brings mental distress upon breach within the reasonable contemplation of the parties; and (2) that the degree of mental suffering caused by the breach was of a degree sufficient to warrant compensation
The test for whether to award damages in negligence is set out in Mustapha at paragraph 3:
A successful action in negligence requires that the plaintiff demonstrate (1) that the defendant owed him a duty of care; (2) that the defendant’s behaviour breached the standard of care; (3) that the plaintiff sustained damage; and (4) that the damage was caused, in fact and in law, by the defendant’s breach.
These are very similar tests. Firstly, there must be a breach, whether of a contractual duty to pay disability benefits, or of a common law duty.
Secondly, there must be sufficient damage sustained to warrant compensation. In the tort claim in Mustapha, the court set stated that for psychological injury to be compensable, it must be “serious and prolonged and rise above the ordinary annoyances, anxieties and fears that people living in society routinely, if sometimes reluctantly, accept” (para 9). Similarly, the court in Fidler stated it must be “of a degree sufficient to warrant compensation” (para 47). As noted in Saadati and Lau, this will not necessarily require expert medical evidence.
Finally, the damages must be caused in fact and in law by the breach. In Mustapha, the court found that the plaintiff’s psychological injuries must be a reasonably foreseeable result of the defendant’s breach of its duty of care in order to meet the test for legal causation. The court in Fidler, applying the principles of Hadley, applied a test of whether damages arising would have been in the reasonable contemplation of the parties; this is quite similar to the reasonable foreseeability test in Mustapha.
Contract and Tort Law: Different Quantum Ranges
In Asselstine v. Manufacturers Life Insurance Co., 2005 BCCA 292 [Asselstine], the court reviewed previous awards for mental distress damages in disability insurance, and found they typically ranged between $10,000 – $20,000. The court upheld the trial judge’s award of $35,000, finding this amount to be at the upper end of the range for mental distress damages.
In contrast to Asselstine, tort cases in BC have provided a significantly wider range of damages for psychological injuries. In Hans v. Volvo Trucks North America Inc., 2016 BCSC 1155, the plaintiff in a motor vehicle accident claim suffered debilitating and long-lasting PTSD and Major Depressive Disorder, though he did not sustain any physical injuries. He was awarded $265,000 in his tort claim. In Saadati, the plaintiff in a motor vehicle accident was awarded $100,000 in non-pecuniary damages for his tort claim for psychological injuries alone, despite having significant pre-existing chronic pain and minimal pre-accident income.
In claims for mental distress damages in disability insurance cases, there is the obvious hurdle that the plaintiff will have significant pre-existing conditions – enough to be disabled from working. However, even accounting for this, the courts in BC have awarded quite conservative damages.
In Gascoigne v Desjardins Financial Security Life Assurance Company (Desjardins Insurance), 2019 BCSC 1241, aff’d on other grounds 2020 BCCA 316, the plaintiff initially developed a physical disability. The insurer denied her disability benefit payments. The plaintiff eventually developed depression and anxiety, largely “related to the financial pressures she and her family felt when the plaintiff stopped bringing home an income” (para 36). As a result of the denial of disability benefits, the plaintiff went from being happy and optimistic to withdrawn and distressed about finances. She became less able to cope with the demands of daily life. She separated from her husband and was expecting to divorce. Despite these significant impacts on her life, largely brought about by the insurer’s breach of contract, she was awarded only $30,000 for mental distress.
In Tanious v. The Empire Life Insurance Company, 2016 BCSC 110, aff’d on other grounds 2019 BCCA 329, leave to appeal to SCC refused, the plaintiff was denied disability benefit payments. She had significant disabling conditions, including multiple sclerosis, depression, and anxiety, and she had used illicit methamphetamines to try to cope with her disabling conditions. The insurer’s denial of her disability benefits made her living situation substantially worse. She could not afford good housing or food, and at times could not even have her soiled clothes washed. She had worked hard and paid for her insurance, and she felt she was being looked upon as a liar and a criminal when the insurer rejected her claim. She was awarded a mere $15,000 in mental distress damages.
There may be room to expand the range of mental distress damages in disability insurance claims. The court in Godwin v Desjardins Financial Security Investments Inc., 2018 BCSC 99 stated at paragraph 169:
Had the defendant been responsible for the entirety of the plaintiff’s psychiatric symptoms, an appropriate award may have been in an amount somewhat higher than the $70,000 to $80,000 contended for by the plaintiff. In the present case, the award must reflect the fact that Desjardins’ conduct only marginally aggravated Ms. Godwin’s illness. I award damages for mental distress in the amount of $30,000.
This judgment reflects that future awards for mental distress in disability insurance may come closer to those in personal injury torts. Additionally, in Greig v Desjardins Financial Security Life Assurance Company, 2019 BCSC 1758 the court awarded $50,000 in mental distress damages, though the case is currently under appeal. The majority of cases, however, continue to assess damages within the range set out in Asselstine, despite acknowledging that this range is “modest” (C.P. v. RBC Life Insurance Company, 2015 BCCA 30 at para 65).
The gap in psychological damage awards between disability insurance claims and tort claims is worthy of further examination in the courts. Both areas of law aim to provide compensation for the same types of injury, and the courts have recognized that damages in contract and tort should be similar. To prevent arbitrary distinctions, previous case law setting out a “modest” range of damages in disability insurance cases should not be given undue weight. Instead, case law on psychological damages in both disability insurance and in tort should be considered of equal precedential value with respect to future awards of damages for mental distress.