London Free Press

In going about our daily activities, we are often confronted with situations that cause stress, frustration or anxiety.

It could be finding insect parts in a bottle of water, receiving a false medical diagnosis or witnessing an accident. The possibilities are limitless.

When faced with these situations, many people are tempted to sue for their "psychological harm."

Certainly there's no shortage of lawyers ready to take on lawsuits seeking compensation for these daily insults. But earlier this year the Ontario Court of Appeal released a decision attempting to put a halt to these lawsuits.

The case arose when patients at an Oshawa hospital were exposed to two patients with tuberculosis in late 2003 and early 2004.

All of those potentially exposed to either of the two TB patients were notified and advised to be tested. The notices stated the risks of being infected were low. Yet, a class action was launched against the hospital and two doctors on behalf of about 3,500 people who tested negative or chose not to be tested.

The lawsuit alleged a failure to properly diagnose TB and take adequate precautions to prevent the spread of infection and risk of harm.

Remember, none of these people developed TB, let alone tested positive for the disease. Most knew within three days of being tested their results were negative. But monetary compensation was claimed on behalf of these people because, they claimed, the notices advising them to be tested caused psychological harm.

The most serious reactions to receiving the notices and waiting for results were said to include "depression, fear, shock, anxiety, anger, frustration, shame, outrage, distress and sleeplessness."

But for the sum of $4,500 per class member and $500 for each of their family members, they'd be content. That's about $17.5 million for the class. Plus legal costs, of course.

The appeals court put the hammer down, upholding the dismissal of the class action brought by these uninfected plaintiffs. In doing so, they gave personal injury lawyers a clear message stating, "the law does not recognize upset, disgust, anxiety, agitation or other mental states that fall short of injury.

"I would not purport to define compensable injury exhaustively, except to say that 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."

They also quoted a prior decision emphasizing we need to accept such upsets rather than seek monetary compensation in lawsuits and "minor and transient upsets do not constitute personal injury, and hence do not amount to damage."

But what if these uninfected claimants had suffered real psychiatric harm? Even then the courts shouldn't be too receptive to the lawsuit.

That's because a bizarre reaction to having received the hospital's notification wouldn't be reasonably foreseeable and courts expect people to approach these daily annoyances with a reasonable degree of fortitude.

That is the lesson we learned when a Windsor man apparently developed a "major depressive disorder with associated phobia and anxiety" after finding a dead fly in a water bottle. That lawsuit was dismissed with judges ruling it wasn't reasonably foreseeable that the man or any person of "ordinary fortitude" would have suffered a serious injury from seeing the dead fly.

Just to reinforce their point, the courts in both the TB and dead fly case ordered the plaintiffs to pay substantial legal costs of the defendants.

These decisions are welcome.

We don't need a litigious society where people sue for slights or trifling injuries. We don't need our courts clogged with silly lawsuits.

This is Canada, not the United States.

alan.shanoff@sunmedia.ca