Skip to content

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.

SHARE

Archive

Search Archive


Search
Generic filters

 
 

Update: New trust reporting and disclosure requirements under the Income Tax Act

November 29, 2022

Note: this is an update to a previously posted Thought Leadership piece from November 2020 to reflect the delayed coming into force of these proposed changes, as well as additional information that has become available. …

Read More

think: international talent

November 29, 2022

As part of our presenting sponsorship of the 2022 Halifax Chamber of Commerce Annual Fall Dinner, lawyers in our Immigration group compiled a series of Thought Leadership articles drawing on the themes of population retention…

Read More

Changes to job classifications and immigration impacts

November 23, 2022

By Brittany Trafford and Michiko Gartshore On November 16th, 2022 the Federal Government switched to the 2021 National Occupational Classification (NOC) structure from the prior 2016 version. The NOC is Canada’s national system used to…

Read More

Nova Scotia: Canada’s emerging immigration hub

November 17, 2022

As part our presenting sponsorship of the Halifax Chamber of Commerce’s Annual Fall Dinner, we are pleased to present a series of thought leadership articles highlighting the dinner’s themes of immigration, recruitment, and labour market…

Read More

Bill C-27 – Canada’s proposed Artificial Intelligence and Data Act

November 16, 2022

Kevin Landry, Charlotte Henderson, and James Pinchak The governance of Artificial Intelligence (AI) is entering a new era since the Canadian Government first announced a digital charter in 2019 as part of a larger-scale overhaul…

Read More

Discovery: Atlantic Education & the Law – Issue 11

November 14, 2022

We are pleased to present the eleventh issue of Discovery, our very own legal publication targeted to educational institutions in Atlantic Canada. With a new academic year well underway, the Atlantic Region is finally seeing…

Read More

The Winds of Change (Part 5): Atlantic Canada poised to benefit from clean energy tax credits

November 10, 2022

By Jim Cruikshank, Graham Haynes, and Dave Randell On November 3, 2022, the Honourable Chrystia Freeland delivered the Federal Government’s Fall Economic Statement (“FES”).  The FES included a number of tax related announcements, including further…

Read More

“Constructive Taking”: Consequences for municipalities from the Supreme Court of Canada decision in Annapolis Group Inc. v. Halifax Regional Municipality

November 10, 2022

By Stephen Penney, Joe Thorne, and Giles Ayers A new decision from the Supreme Court of Canada, Annapolis Group Inc. v. Halifax Regional Municipality, 2022 SCC 36 (“Annapolis”), has changed the law of constructive expropriation across the…

Read More

Attract & Retain: Nova Scotia taps foreign healthcare workers to fill labour shortages

November 10, 2022

As part our presenting sponsorship of the Halifax Chamber of Commerce’s Annual Fall Dinner, we are pleased to present a series of thought leadership articles highlighting the dinner’s themes of immigration, recruitment, and labour market…

Read More

The rise of remote work and Canadian immigration considerations

November 3, 2022

As part our presenting sponsorship of the Halifax Chamber of Commerce’s Annual Fall Dinner, we are pleased to present a series of thought leadership articles highlighting the dinner’s themes of immigration, recruitment, and labour market…

Read More

Search Archive


Search
Generic filters

Scroll To Top