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.