Proving Damages for Mental Injury: Guidance from the Supreme Court of Canada
The recent decision of Saadati v. Moorhead1 raises the question of whether recovery for a mental injury requires expert medical opinion of a “recognized psychiatric illness”.
In Saadati v. Moorhead, the plaintiff Saadati was driving a tractor truck that was struck by a vehicle being operated by the defendant Moorhead. At trial, the defendant Moorhead admitted liability for the collision, but argued that the plaintiff Saadati suffered no damage. The plaintiff Saadati alleged both physical and mental injury. The trial judge concluded that Saadati did not suffer from physical injury as a result of the accident. However, the trial judge awarded him $100,000 for non-pecuniary damages for mental injury based not on expert evidence or an identified medical cause, but on the testimony of family and friends of Saadati to the effect that his personality had changed for the worse since the accident.
The Defendant Moorhead appealed. The British Columbia Court of Appeal reversed the trial judge’s decision, holding that recovery for mental injury requires a claimant to prove, with expert medical opinion evidence, a “recognized psychiatric illness”.
The Supreme Court of Canada ruled that proof of mental injury was to be treated the same as proof of physical injury. That is, by satisfying the standard elements of the cause of action for negligence, as set out in Mustapha v. Culligan of Canada Ltd2. The court rejected arguments that a recognized psychiatric illness requirement was necessary because of special concerns related to mental injuries such as the subjective nature of the symptoms, indeterminate liability, and feigned or exaggerated claims. It held that such arguments were founded upon: “… dubious perceptions of, and postures towards, psychiatry and mental illness in general”.3
In rejecting the need for proof of a recognized psychiatric illness, the court held that the Mustapha test provided sufficient protections against the potential of unworthy claims for mental injury:
“None of this is to suggest that mental injury is always as readily demonstrable as physical injury. While allegations of injury to muscular tissue may sometimes pose challenges to triers of fact, many physical conditions such as lacerations and broken bones are objectively verifiable. Mental injury, however, will often not be as readily apparent. Further, and as Mustapha makes clear, mental injuryis not proven by the existence of mere psychological upset. While, therefore, tort law protects persons from negligent interference with their mental health, there is no legally cognizable right to happiness. Claimants must, therefore, show much more – that the disturbance suffered by the claimant is ‘serious and prolonged and rise[s] above the ordinary annoyances, anxieties and fears’ that come with living in civil society (Mustapha, at para. 9)”4 (Emphasis added)
The court concluded that while a medical diagnosis was important for treatment purposes, a trial judge’s inquiry should be directed to the level of harm that the claimant’s particular symptoms represent and not a label that could be attached to them.
Lessons for Insurers
This decision makes it clear that mental injuries are to be treated like physical injuries. It is not necessary for a claimant to prove a recognized mental injury using expert evidence as a precondition to recovery. It is the symptoms and their effects which are important and not a medical diagnosis or label.
Given that the decision in Saadati was based on the evidence of lay witnesses (family and friends of the claimant), it is expected that plaintiff counsel will place increased emphasis on such testimony. The defendant may be able to put forward lay witnesses to counter the symptoms being alleged by the claimant. For instance, lay witnesses called by the defendant may counter the plaintiff’s evidence by showing that the plaintiff regularly participates in recreation and social activities.
Expert evidence may still be of assistance to the defence. While expert evidence is not required as a matter of law for mental injury to be proven, the court indicated that expert evidence will still often be helpful in determining whether the claimant has proven a mental injury:
“Where a psychiatric diagnosis is unavailable, it remains open to a trier of fact to find on other evidence adduced by the claimant that he or she has proven on a balance of probabilities the occurrence of mental injury. And, of course, it also 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. While, for the reasons I have given, the lack of a diagnosis cannot on its own be dispositive, it is something that the trier of fact can choose to weigh against evidence supporting the existence of a mental injury.”5
Furthermore, the court held that expert evidence will be important to consider in terms of the seriousness of the symptoms, the duration of the impairment and the nature and effect of any treatment.
Defending claims for mental injury will require a renewed focus on the baseline thresholds for recovery contained in the Mustapha decision. In particular, defendants will want to pay special attention to the requirements that the claimant prove that mental injury was foreseeable as a result of the defendant’s conduct, and that the injury is a “serious and prolonged disruption that transcends ordinary emotional upset or distress”. These are both areas where defendants may challenge the building blocks for the existence of a mental injury. Expert evidence may assist with this, and in countering the testimony of lay witnesses. For instance, expert evidence may indicate that the type of negligent conduct in question would not have produced a foreseeable mental injury, and/or that the claimant’s symptoms do not amount to what should be considered a “serious and prolonged disruption that transcends ordinary emotional upset or distress”. If the defendant is able to show that the plaintiff has not met those baseline thresholds, the claim for mental injury has not been established.
1 2017 SCC 28
2 2008 SCC 27
3 Supra note 1 at para 21
4 Ibid at para 37
5 Ibid at para 38