Client Update: Mental injury? Expert diagnosis not required
On June 2, 2017 the Supreme Court of Canada released its decision in Saadati v. Moorhead, 2017 SCC 28, clarifying the evidence needed to establish mental injury. Neither expert evidence nor a diagnosed psychiatric illness is required.
The plaintiff, Mr. Saadati, had been involved in five motor vehicle accidents between January 2003 and March 2009. He suffered chronic pain after the first accident, which was aggravated by the third accident. The defendant, Mr. Moorhead, was responsible for the second accident. Liability was admitted for the accident, but it was argued that the plaintiff suffered no damage.
Much of the expert evidence offered in support of the plaintiff’s claim that he suffered injury from the accident was ruled inadmissible at trial. However, the testimony of friends and family regarding mood swings and behaviour changes convinced the trial judge that the accident had caused “psychological injuries, including personality change and cognitive difficulties”; $100,000 was awarded for non-pecuniary damages.
The British Columbia Court of Appeal overturned the trial decision, finding that it was an error to award damages for mental injury in the absence of a medically recognized condition established by expert evidence. The appeal court also found that the issue of mental injury had not been sufficiently pleaded or argued thereby depriving the defendant of the opportunity to fully defend those allegations.
In its unanimous decision, the Supreme Court of Canada restored the decision at trial, holding that proof of a “recognizable psychiatric illness” is not required to establish mental injury. The Court rejects as “inherently suspect” the practice of relying on diagnostic manuals or criteria to limit the scope of successful mental injury claims. Judges are to be concerned with the nature of the symptoms experienced and their effects, not the diagnosis or label for those symptoms.
Although expert evidence is not required to prove mental injury, it can assist in determining whether mental injury has been established and, if so, the cause of that injury. “Mental injury” means more than merely “psychological upset”; plaintiffs must establish that the disturbance from which they suffer is serious, prolonged and rises above “the ordinary annoyances, anxieties and fears that come with living in civil society”.
The Supreme Court of Canada confirmed that recovery for mental injury must meet the threshold set out by the Court in Mustapha v. Culligan of Canada Ltd., that is “whether the occurrence of mental harm in a person of ordinary fortitude was the reasonably foreseeable result of the defendant’s negligence”; if not, the plaintiff’s claim for compensation will be denied.
What this means for insurers
Expert evidence remains important. Expertise can assist with determining the cause of the alleged injury, whether the injury was rare (perhaps not forseeable), treatment for the symptoms experienced and the future outcome following treatment.
Focus on the symptoms. The symptoms experienced and their effect on the individual are key, not the diagnosis. A claimant may not need to specify the precise type of injury for which they are seeking compensation. In Saadati, the plaintiff was awarded compensation despite failure to more specifically plead mental injury in the statement of claim. Injured persons will be entitled to compensation for both physical injury and mental injury if the nature and extent of symptoms meets the threshold from Mustapha.
Archive
Rick Dunlop and Will Wojcik Nova Scotia’s COVID-19 Paid Sick Leave Program (“Program”) is now open for applications. Employers can now be reimbursed for employees’ time off work to comply with public health requirements, including…
Read MoreSean Kelly and Will Wojcik A recent decision of the Human Rights Tribunal of Alberta (“Tribunal”) dismissing a customer’s allegations of discrimination based on physical disability and religious belief against a Natural Food Store’s mandatory mask…
Read MoreClarence Bennett and Lara Greenough In ExxonMobil Business Support Centre Canada ULC v Birmingham, the New Brunswick Court of Appeal considered the equitable remedy of unjust enrichment in the context of an ordinary wrongful dismissal…
Read MoreBrian Johnston, QC and Katharine Mack COVID-19 vaccination policies have become more prevalent. Public sector employees have been mandated to get vaccinated in a number of jurisdictions, the federal government has mandated vaccinations in the…
Read More*Last updated: December 17, 2021 (originally published December 1, 2021) Mark Tector and Will Wojcik Bill 27, Working for Workers Act (“Act”), 2021, received Royal Assent on December 2, 2021, and is now in force in Ontario.…
Read MoreIncluded in Discovery: Atlantic Education & the Law – Issue 09 (also available in French, here) Tessa Belliveau In its recent and interesting decision regarding Zaki v. University of Manitoba, 2021 MBQB 178 (CanLII), the…
Read MoreIncluded in Discovery: Atlantic Education & the Law – Issue 09 Conor O’Neil and Sarah-Jane Lewis Construction lien legislation exists in every province and territory in Canada. Liens are a creature of statute introduced, at…
Read MoreChristopher Marr, TEP and Michael Forestell As detailed in our previous update , in March 2020 New Brunswick implemented the Unclaimed Property Act (“Act”), with the intention that the New Brunswick Financial and Consumer Services…
Read MoreMargaret Anne Walsh and Graeme Stetson Beneficial Ownership and Corporate Transparency On September 1, 2020, the Government of Prince Edward Island proclaimed into force Bill no. 34 which amends the Business Corporations Act (“BCA”). The…
Read MoreIncluded in Discovery: Atlantic Education & the Law – Issue 09 Brendan Sheridan With the 2021 fall school semester under way, it has been a year and a half since the COVID-19 pandemic first resulted…
Read More