Canada: Proving Mental Injury — The Supreme Court Strikes Lower Courts' Requirement For A Recognized Psychiatric Illness But Confirms Injury Must Be Serious And Prolonged

In Saadati v Moorhead, released June 2, 2017, the Supreme Court of Canada (the "Court") restates and clarifies the test from Mustapha v Culligan of Canada Ltd for proving the existence of a compensable mental injury1. The Court confirms that there is no requirement to demonstrate a "recognizable psychiatric illness" supported by expert opinion.2

In Saadati, the plaintiff had been in a series of five motor vehicle collisions and alleged that the second accident caused mental injury. At trial (2014 BCSC 1365), the trial judge found that the second accident had caused "psychological injuries, including personality change and cognitive difficulties." Significantly, this finding did not rest upon a medical diagnosis or expert evidence. Instead the trial judge relied on testimony from the plaintiff's friends and family as to his change in behaviour after his accident.

On appeal (2015 BCCA 393), the Court of Appeal for British Columbia set aside the order of the trial judge and dismissed the action, holding that the law required that the plaintiff show a recognizable psychiatric illness and that "absent expert medical opinion evidence, a judge is not qualified to say what is, or is not, an illness." This statement of the law has been true for other Canadian jurisdictions.

The Supreme Court of Canada restored the decision of the trial judge, holding that "a finding of legally compensable mental injury need not rest, in whole or in part, on the claimant proving a recognized psychiatric illness." A plaintiff can establish a mental injury based on non-expert evidence that they have suffered from a serious and prolonged disturbance.

Criticisms of the "Recognizable Psychiatric Illness" Threshold

The Court's key criticism of the requirement of a "recognizable psychiatric illness" was that there was no necessary relationship between a compensable mental injury and a diagnostic classification scheme. The application of diagnostic tools and categorization of mental injuries are not necessarily objective or static — "psychiatric diagnoses... can sometimes be controversial even among treating practitioners" and "labels that were at one time widely accepted may become obsolete." Rather than focusing upon a specific diagnostic label, the Court held that a trier of fact should focus upon the level of harm a plaintiff's symptoms represent.

Further, the Court does not view the recognizable psychiatric illness threshold as necessary to prevent indeterminable liability. A "robust application" of the elements of a cause of action in negligence should be sufficient to address these concerns. The Court explains that liability for mental injury is to be confined to claims satisfying proximity within the duty of care analysis (relationship between parties) and remoteness of the damage (proximity between the harm and the wrongful conduct).

Finally, the Court recognizes that requiring plaintiffs to demonstrate a "recognizable psychiatric illness" for mental injury is in contrast with a lack of any such requirement for plaintiffs claiming physical injuries. To do so would provide less protection to victims of mental injury "for no principled reason".

Proving Mental Injury

The Court's decision clarifies that the law as stated in Mustapha continues to be the law in Canada. For a mental injury to be compensable, a plaintiff must suffer an injury which is "serious and prolonged and rise above the ordinary annoyances, anxieties and fears that people living in society routinely, if sometimes reluctantly, accept."  It should be noted that despite the Court's interest in providing a similar process for establishing mental and physical injuries, physical injuries need not rise to the same "serious and prolonged" threshold as mental injuries to be compensable.

Where a psychiatric diagnosis is unavailable, a trier of fact can now rely on other evidence adduced by a plaintiff to find a mental injury.

Expert evidence will continue to remain relevant in the context of claims for mental injury. Although expert evidence will no longer be required, it will continue to be of assistance to triers of fact in determining whether a mental injury has been demonstrated. Relevant considerations that could be assisted by expert evidence include the seriousness of impairments to cognitive functions and participation in daily activities, the length of impairment, and the nature and effect of any treatment. Where plaintiffs do not offer relevant expert evidence to assist a trier of fact in reviewing these and any other relevant considerations, "they run a risk of being found to have fallen short".

Expert evidence will remain relevant to defendants who disagree with a plaintiff's claim of mental injury. "[I]t remains open to the defendant, in rebutting a claim, to call expert evidence establishing that the accident cannot have caused any mental injury, or at least any mental injury known to psychiatry". Although a lack of a recognized diagnosis is no longer a bar to recovery, "it is something that the trier of fact can choose to weigh against any evidence supporting the existence of a mental injury".

Practice Tips

  • It is open to a plaintiff to establish a compensable mental injury based on non-expert evidence that establishes a serious and prolonged injury;
  • Demonstrating a "recognizable psychiatric illness", supported by expert evidence, is no longer a threshold requirement for demonstrating a compensable mental injury;
  • Expert evidence, although not strictly required, will continue to play a role in proving or disproving mental injuries; and
  • A plaintiff need not show that their mental injury falls within a category of a recognized psychiatric illness, but the lack of a diagnosis is something a trier of fact can weigh against evidence supporting a mental injury.

Footnotes

1 Sometimes also referred to as "nervous shock", "psychological injury", "psychological illness", "psychiatric damages", "psychiatric injury" or "psychiatric illness". A discussion of this varied terminology can be found at paragraph 1 of the Court's decision.

2 The Court also addresses the specificity required in pleadings to ground a claim for mental injury, suggesting that broad heads of damage alleged in pleadings may be sufficient. The Court's analysis of this issue can be found at paragraphs 9-12 of its decision.

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