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

 
 

The Winds of Change (Part 4): A Review of Rental and Royalty Regimes for Wind Development on Crown Lands: Options for Newfoundland and Labrador’s Economic Wind Policy

August 3, 2022

By: John Samms, Sadira Jan, Paul Kiley, Dave Randell, Alanna Waberski, and Jayna Green As we explained in our July 6, 2022 “Winds of Change” article, the announcement made by Minister Andrew Parsons on April…

Read More

Update on the Economic Mobility Program for Refugees (phase 2): The Economic Mobility Pathways Project (“EMPP”)

August 2, 2022

Included in Beyond the Border – July 2022 By Brittany Trafford; Fredericton   Brief Overview In an attempt to address the Canadian labour market shortages, the Economic Mobility Pathways Pilot (“EMPP”), was introduced in 2018.…

Read More

HR Best Practices When Employing Foreign Workers

July 29, 2022

Included in Beyond the Border – July 2022   By Brendan Sheridan; Halifax Canadian employers are increasingly relying on foreign workers to fill gaps in the labour market and to provide specialized skills. In 2020,…

Read More

Beneficial Ownership Registry Rules Come to New Brunswick

July 28, 2022

By Alanna Waberski, Graham Haynes and Maria Cummings On June 10, 2022, the Government of New Brunswick proclaimed into force Bill 95, which amends the Business Corporations Act (New Brunswick) (the “NBBCA”) to require corporations…

Read More

Recent trends in defined benefits pension plans – a review of public sector plans

July 28, 2022

Included in Discovery: Atlantic Education & the Law – Issue 10 Hannah Brison and Dante Manna Increased financial volatility caused by recent global events has caused public sector defined benefit (“DB”) pension plans to reflect…

Read More

Atlantic Canada offers immigration pathways for workers in Trucking, Health, Construction and Food Service Industries

July 27, 2022

Included in Beyond the Border – July 2022 By Sara Espinal Henao; Halifax It is a well-known fact that Atlantic Canada needs workers. In the aftermath of COVID-19, regional employers in the trucking, health, construction,…

Read More

The winds of change (part 3): Newfoundland and Labrador releases wind energy guidelines

July 27, 2022

By: John Samms, Matthew Craig, Dave Randell,  and Jayna Green On July 26, 2022 the Province of Newfoundland and Labrador (the “Province”) released “Guidelines: Nominating Crown Lands for Wind Energy Projects” (the “Guidelines”). Described as…

Read More

Trends in tenure and promotion for unionized employers

July 25, 2022

Included in Discovery: Atlantic Education & the Law – Issue 10 By Kate Profit    Tenure is a well known and often discussed topic amongst academics. Viewed by unions as a cornerstone of modern universities,…

Read More

Car-Sharing Comes to PEI – Insurance Implications

July 22, 2022

Dalton McGuinty Jr. and Kegan Bradley On May 17th, 2022, Canada’s largest car-sharing company, Turo, brought their platform to Prince Edward Island. The service allows car owners (lessors) to lend out their vehicles to drivers…

Read More

Federal Government announces significant investments in Nova Scotian clean energy initiatives

July 21, 2022

Nancy Rubin & Tiegan Scott On July 21, 2022, the Federal government announced a new investment of up to $255 million for clean energy initiatives in Nova Scotia. The funds will be allocated in two…

Read More

Search Archive


Search
Generic filters

Scroll To Top