Supreme Court of Canada Says That Diagnosis and Expert Evidence Not Required For Finding of Compensable Mental Injury
Jun 12, 2017
In Saadati v. Moorhead 2017 SCC 28 the SCC confirmed that recovery in negligence for mental injury does not require a claimant to prove, with expert medical opinion evidence, that he or she has suffered a “recognizable psychiatric illness”. In doing so, the Court affirmed that the elements of the cause of action of negligence, together with the threshold previously articulated in Mustapha v. Culligan of Canada Ltd., 2008 SCC 27 for proving mental injury, sufficiently protected against in unworthy claims.
The plaintiff in Saadati was involved in five motor vehicle accidents between January 2003 and March 2009, and claimed to have suffered chronic pain since the first accident that was aggravated by the third accident. The accident before the court was the second of the accidents. The action, commenced in 2007, framed in negligence and sought damages for non-pecuniary loss and past income loss. Following the commencement of the action, the plaintiff was in two further accidents and by 2010 he was declared mentally incompetent. His action was continued by a litigation guardian.
While liability was admitted, the defendants contested damages. The trial judge found that the plaintiff had not demonstrated any physical injury resulting from the accident, but had established that he suffered psychological injuries, including personality changes and cognitive difficulties. This conclusion was based on the testimony of the plaintiff’s family and friends, and not on an identified medical cause or expert evidence.
The B.C. Court of Appeal granted the defendants’ appeal, and held that the trial judge erred by awarding damages for mental injury where the plaintiff had not proven a medically recognized psychiatric or psychological illness or condition demonstrated by expert medical opinion evidence. Further, the Court of Appeal held that in awarding damages for mental injury, the trial judge erred by deciding the case on a basis that they found was not pleaded or argued by the plaintiff, and without warning to the parties.
In restoring the trial judge’s decision, the SCC confirmed that in claims for negligently caused mental injury, it is generally sufficient for the plaintiff’s pleadings to allege some form of such injury. While the pleadings in the case at hand included boilerplate language that did not refer to a particular mental illness or psychiatric condition, they alleged broad forms of injury and were open ended. The plaintiff also filed evidence at trial from a psychiatrist that confirmed a diagnosis of mental disorders (without establishing causation), and the plaintiff’s oral and written closing submissions at trial also alleged the occurrence of a psychological reaction to the accident. The SCC found that these allegations of a psychological reaction, combined with the broad heads of damage alleged in the pleadings, provided sufficient notice to the respondents of the case which they had to answer.
The SCC also confirmed that the test for compensable mental injury in negligence established in Mustapha remains the threshold for plaintiffs to meet to successfully recover damages for mental harm. As with physical harm, the plaintiff must prove that he was owed a duty of care, that it was breached, that damage resulted, and that there was a legal and factual causal relationship between the breach and the damage. This includes establishing that the harm suffered was foreseeable and was not too remote – essentially that “the occurrence of mental harm in a person of ordinary fortitude was the reasonably foreseeable result of the defendant’s negligent conduct”. In the face of potentially unworthy claims, nothing further is required beyond the robust application of the above test. While an accurate psychiatric diagnosis is helpful, it is not required as a matter of law. Ultimately, where an injury is found even in the absence of a label, the trier of fact is to concern him or herself with the level of harm suffered by the plaintiff, and not a particular diagnosis. As for the plaintiff, he or she must continue to be able to demonstrate that the mental disturbance is serious and prolonged.
Overall, this decision affirms that a readily recognizable diagnosis is not required to recover for a mental injury in negligence. Defendants must be mindful of the potential for recovery for mental injury where it appears to be present, even where it has not been overtly pled. They must also be prepared to respond to these claims as they develop at trial, possibly based on lay witness testimony of family and friends that cannot typically be previewed in advance, even where there is a lack of expert medical evidence to support the claim.