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The Intangible Injury: The Supreme Court Reconsiders the “Recognizable Psychiatric Illness” Requirement

By: Sheila Morris, Reisler Franklin LLP , Toronto

Case Comment Saadati v Moorhead

A unanimous decision of the Supreme Court of Canada has recently ruled that proof of a recognized psychiatric injury is not a precondition for awarding damages for mental injuries caused by negligence. Although an important decision, this case may be open to misinterpretation as, in our view, it does not represent a significant departure from the current law on personal injury damages.

Background
The plaintiff, Saadati, was involved in 5 motor vehicle accidents between January 28, 2003 and March 23, 2009. He was declared incompetent in 2010. This case concerns the second accident of July 5, 2005 in which his tractor-truck was struck by a large vehicle driven by the defendant, Moorhead. At trial, the plaintiff sought non-pecuniary damages and past income loss. He did not allege a psychological injury in his pleadings, and did not advance his claim on that basis during closing submissions. The trial judge rejected the plaintiff’s claim that he sustained a brain injury in the accident, and found that the plaintiff’s expert psychological evidence did not establish a psychological injury. However, the trial judge found that the testimony of the plaintiff`s friends and family did establish a psychological injury; namely, personality change and cognitive difficulties. Neither the plaintiff nor the defendant knew that the trial judge was considering a damages award on the basis of psychological injury until he released his reasons for judgment. He awarded the plaintiff $100,000 in non-pecuniary damages.

This decision was overturned by the Court of Appeal for British Columbia, which found that the plaintiff’s expert evidence had not demonstrated a medically recognized psychiatric or psychological injury. The plaintiff appealed to the Supreme Court of Canada.

The Ruling
The Supreme Court confirmed that liability rules for mental injury are no different than those for physical injury. To impose different requirements for claimants alleging a mental illness would accord them unequal protection under the law.

Specifically, the Court held that a negligent defendant need only be shown to have foreseen some injury, and not necessarily a particular (psychiatric) illness that comes with its own label. Just as a physical injury is not necessarily determined on expert diagnostic evidence, a mental injury does not require proof of a recognizable psychiatric illness. While an accurate diagnosis is important, a trier of fact in a claim for mental injury is more concerned with the claimant’s symptoms and their effects, rather than the diagnosis itself.

The Court is careful to emphasize that this does not invite compensation for trivial matters. Just as liability rules are no different for mental injury claims, there is no reason to assume that the constraints the law imposes on claimants alleging physical injury would be any less effective in weeding out unworthy claims for mental injury. A claimant must still establish a duty of care, a breach of the duty, damages, and causation. Further, the Court referred to the limits set out in the 2008 SCC case of Mustapha v Culligan of Canada Ltd.. Specifically, psychological disturbance must be distinguished from psychological upset. Although the law protects people from negligent interference with their mental health, there is “no legal right to happiness”. Claimants must show much more; that is, that the disturbance claimed is serious and prolonged, and rises above the ordinary annoyances, anxieties, and fears that come with living in civil society.

Commentary
The principles of this ruling are not new to us. The Ontario defence bar, in auto accident cases, has been defending the statutory exemption, or the “threshold,” for years, and there is an abundance of well-established case law that makes precisely the points confirmed in this case. For one, we know that a Court’s analysis emphasizes the effect of the injury on the person, and not on the type of injury or the labels that might attach to a plaintiff’s complaints (Dimopoulos v Mustafa 2016 ONSC 429). Put another way, the focus is on the claimant’s impairment rather than the injury itself.

Second, we know that the law protects against unmeritorious claims. Auto insurance legislation intends that injured persons may experience some detrimental impact on their lives without the ability to recover non-pecuniary damages. A claimant’s injury must go beyond residual discomfort (Malfara v Vukojevic 2015 ONSC 78).

Third, although it is not discussed in the case, the Supreme Court cannot have intended to eliminate the inquiry into the credibility of the plaintiff’s stated complaints. Since the symptoms of an un-diagnosed psychiatric illness or injury are likely to be largely subjective, the plaintiff’s recovery of damages is still going to depend on the extent to which the trier of fact believes he or she actually has those symptoms. Furthermore, it is also unlikely that the Supreme Court intended to foreclose the very controversial debate relating to volitional versus involuntary behaviour, and the scientific issues surrounding Conversion Disorder (DSM-IV-TR) or Somatic Symptom Disorder (DSM-V)

What is interesting in this case is the Supreme Court’s treatment of notice. The Court acknowledged the rules of natural justice that entitle each party to know and respond to the case against it. Recall that the plaintiff did not specifically plead mental injury in his Statement of Claim, nor did he rely on this argument in closing submissions. The Court held that it is generally sufficient that the pleadings allege some form of mental injury, and referred to the “broad heads of damage” in the Statement of Claim. The ruling refers specifically to the boilerplate pleadings we often see in claims: “such further and other injuries as may become apparent…” and “general damages for pain and suffering… loss of enjoyment of life.” The Court held that this, combined with the many allegations of mental injury in the plaintiff’s oral and written closing submission, constituted ample notice to the defendant of the case he had to answer.

This case is a helpful reminder that a vigorous and continuous assessment is the best defence. We cannot rely on the plaintiff to set the parameters; rather, we need to conduct a thorough and impartial appraisal of all of the evidence to anticipate risk that even the plaintiff him or herself may not have considered.

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