Supreme Court of Canada Turns the Ship Around on Damages for Mental Injury05-Jun-17
By Michael Barbero
The Supreme Court of Canada decision in Saadati v. Moorhead clarifies that expert evidence is not required to establish a claim for damages arising from mental injury. In so finding, the Supreme Court of Canada has deviated from the general practice of only awarding damages for mental injury where expert evidence diagnosed a recognized psychiatric injury.
On July 5, 2005, Mr. Saadati was driving a tractor-trailer, without the trailer, when his vehicle was impacted by a large SUV (the “Accident”). Mr. Saadati was assessed at the scene by paramedics but not transported to hospital. The Accident was one of five Mr. Saadati was involved in between January 2003 and March 2009. Mr. Saadati commenced a lawsuit as a result of the Accident alleging physical and brain injuries.
The trial judge awarded Mr. Saadati $100,000 in damages. The trial judge found that Mr. Saadati had not experienced either physical injury or brain injury as a result of the Accident. Rather, the trial judge found Mr. Saadati experienced psychological injury for which he should be compensated. This finding was based solely on the evidence of Mr. Saadati’s various family members who testified he was a “changed man” after the Accident.
The British Columbia Court of Appeal dismissed the action, holding that the law required proof (i.e. expert evidence) of a medically recognized psychiatric or psychological illness or condition in order for there to be compensable damages. The Court of Appeal went on to reject Mr. Saadati’s argument that as a result of the Supreme Court’s ruling in Mustapha v. Culligan of Canada Ltd. ("Mustapha”), the threshold had been lowered for establishing psychiatric damages such that a plaintiff was not required to show his or her condition was medically recognized.
A unanimous Court (reasons for judgment by Brown J.) has set the law on a different track by holding that damages for mental injury do not rest on the existence of a provable and recognized psychiatric injury. Rather, it is the symptoms and the effects, not the diagnosis, that is the proper subject of inquiry in claims for personal injury.
The Court returned to first principles, holding that a claim for damages arising from mental injury is to be assessed on the standard tort basis: duty of care, breach of duty, damages and proximity. Any distinction between physical and mental injury, the Court opined, would be giving unequal protection to victims of mental injury.
Anticipating the obvious storm clouds, the Supreme Court went on to directly address the risk that such a holding would set off a host of unfounded and un-meritorious claims. In response the Supreme Court made the following points:
1. Mental injury must be serious, prolonged and rise above the ordinary annoyances, anxieties and fears of living in civil society.
2. Tort law combined with the threshold set out in Mustapha for proving mental injury, create a sufficiently robust array of protections against unworthy claims.
3. Psychiatric diagnostic tools are themselves inherently suspect as a matter of legal methodology.
As seen above, the decision relied heavily on the Court’s jurisprudence in Mustapha, a decision in which a claim for damages associated with mental upset was dismissed on the basis of being too remote. Furthermore, the Court was very focused in its attack on psychiatric diagnostic tools, pointing out that such criteria are often subject to change and evolution and, at times, are clearly inconsistent with both modern medical understanding and societies views more generally. The Court provided the stark examples of homosexuality, which was considered a psychiatric disorder until 1973, and post-traumatic stress disorder, which did not exist as a recognized psychiatric disorder until 1980.
It should be noted that the Supreme Court has not wholly cast-away expert evidence. Great lengths were taken to note that expert evidence can be of assistance to the Court in determining whether or not the mental injury has been shown, the impacts of same and as a means of refuting such claims. Rather, the decision stands for the principle that expert evidence is not required in such cases.
Despite the Supreme Court’s comments on why this new approach will not result in an expansion of similar claims, we anticipate plaintiffs and their counsel will in fact move to plead mental injury in a wider number of actions and circumstance and will seek to establish these claims at trial with evidence of family and friends rather than experts, as was successful done in Saadati v. Moorhead.