Canada: Saadati: Expert Evidence Not Needed To Prove Compensable Mental Injury

In Saadati v. Moorhead, 2017 SCC 28 [Saadati], the Supreme Court of Canada ("SCC") held that it is not necessary for a plaintiff to adduce expert evidence establishing an identifiable medical diagnosis in order to recover for psychological harm; the evidence of lay witnesses can suffice. This arguably marks a departure from the Court's concern regarding the "spectre of indeterminate liability" which, in the past, has prevented the Court from opening new avenues for recovery.

In July 2005, the plaintiff, Mr. Mohsen Saadati, was in a Motor Vehicle Accident with Mr. Moorhead (the "Accident"). The Accident was the second of five motor vehicle accidents the Plaintiff was in between 2003 and 2009. Ambulance attendants on scene noted that the Plaintiff appeared emotionally "shaken" but observed no injuries that warranted taking the Plaintiff to hospital. The Defendant, Moorhead, admitted liability for the Accident but argued that the Plaintiff had not suffered any injuries.

At trial, the Plaintiff sought compensation for non-pecuniary damages and wage loss for physical and psychological injuries. There was conflicting expert evidence as to whether the Plaintiff had suffered a concussion in the Accident. Mr. Justice Funt declined to find that the Plaintiff suffered a head injury but, found that the Plaintiff suffered psychological injury manifesting in cognitive difficulties and personality change. In doing so, the Court relied on the testimony of the Plaintiff's friends and family, particularly that of the Plaintiff's ex-wife and niece, who stated that post-Accident the Plaintiff suffered from mood swings and was not the "active, happy, cheerful, outgoing, very nice" man he used to be, and the SCC decision of Clements v. Clements, 2012 SCC 32 [Clements] in which that Court held that a "trial judge is to take a robust and pragmatic approach to determining if a plaintiff has established that the defendant's negligence caused [his or her] loss. Scientific proof of causation is not required".

The Plaintiff was awarded non-pecuniary damages of $100,000.

The British Columbia Court of Appeal overturned the trial judge's decision holding that a plaintiff must provide proof of a medically recognized psychiatric or psychological illness or condition in order to be awarded damages. The BCCA relied on Odhavji Estate v. Woodhouse, [2003] 3 SCR 263, in which the SCC said that compensation for psychiatric damages is available in instances in which the plaintiff suffers from a "visible and provable illness" or "recognizable physical or psychological harm". In doing so, it rejected the Plaintiff's interpretation of Mustapha v. Culligan of Canada Ltd, 2008 SCC 27 [Mustapha] as precedent removing "the requirement that a plaintiff prove a recognizable psychiatric (or psychological) condition".

At the Supreme Court of Canada, Mr. Justice Brown, writing for the Court, rejected the BCCA's approach to psychiatric injury, saying that it had never required "a recognizable psychiatric illness as a precondition to recovery for mental injury" and asserting that the process for determining compensable psychological injury must be the same as determining physical injury:

Just as recovery for physical injury is not, as a matter of law, conditioned upon a claimant adducing expert diagnostic evidence in support, recovery for mental injury does not require proof of a recognizable psychiatric illness.

Instead of formulating a distinct test for psychiatric damages, Justice Brown stated that the elements of the cause of action of negligence, in conjunction with the threshold asserted in Mustapha for proving mental injury, provide a "sufficiently robust array of protections against unworthy claims".

In Mustapha, the plaintiff alleged that he suffered extreme mental injury after finding a fly in his bottled water. The Court addressed compensable mental injury and held that it is "serious and prolonged" and rises "above the ordinary emotional disturbances that will occasionally afflict any member of civil society without violating his or her right to be free of negligently caused mental injury". This is the threshold referenced in Saadati: not all mental disturbances will amount to true "damage" qualifying as mental injury. In Saadati, Justice Brown emphasized that this threshold is a matter of "degree of disturbance" but does not require a recognizable psychiatric condition.1

The Court in Saadati noted that expert medical opinions regarding psychological harm are typically done with reference to the Diagnostic and Statistical Manual of Mental Disorders ("DSM") which stipulates diagnostic criteria for, and classifies, mental disorders. However, Justice Brown noted that courts must be cautious of relying solely on DSM criteria:

Confining compensable mental injury to conditions that are identifiable with reference to these diagnostic tools is, however, inherently suspect as a matter of legal methodology. While, for treatment purposes, an accurate diagnosis is obviously important, a trier of fact adjudicating a claim of mental injury is not concerned with diagnosis, but with symptoms and their effects.

The Court held that entitlement to compensation is based on "the level of harm that the claimant's particular symptoms represent" and not whether a label can be attached to those symptoms.

The Court recognized that expert evidence will often be of assistance in determining whether a plaintiff has proven psychological harm, but held that such evidence is not required as a matter of law. In situations where a psychiatric diagnosis is non-existent, "it remains open to a trier of fact to find on other evidence... that he or she has proven on a balance of probabilities the occurrence of mental injury." In applying his analysis to Mr. Saadati's claim, Justice Brown accepted the trial judge's findings that the testimonial evidence established that Mr. Saadati had suffered psychological injury and restored that Court's non-pecuniary damages awarded.

In Saadati, the Court expressly says that mental injury must be treated in the same manner as physical injury. In so doing, Saadati likely represents a new direction for Canadian jurisprudence, which will begin to treat psychiatric harm as seriously as physical harm, and suggests that we may see more compensation for psychiatric injury in the future. The decision has been praised as a step towards removing the stigma of mental injury. However, it remains to be seen whether this will translate into action in the lower Courts.

Footnote

1 The Court in Mustapha recognized that the plaintiff suffered mental distress, but the plaintiff's claim failed as the damage was found to be too remote.

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