NOTE: THE SUPREME COURT OF CANADA ALLOWS THE PLAINTIFF’S APPEAL 2017 SCC 28
Summary from headnote: We will provide a comprehensive review of this decision shortly
Recovery for mental injury in negligence law depends upon the claimant satisfying the criteria applicable to any successful action in negligence: a duty of care, a breach, damage, and a legal and factual causal relationship between the breach and the damage.
A finding of legally compensable mental injury need not rest, in whole or in part, on the claimant proving a recognized psychiatric injury. The law of negligence accords identical treatment to mental and physical injury. Requiring claimants who allege mental injury to prove that their condition meets the threshold of recognizable psychiatric illness, while not imposing a corresponding requirement upon claimants alleging physical injury to show that their condition carries a certain classificatory label, would accord unequal protection to victims of mental injury.
In Saadati v. Moorhead, the defendant, Mr. Moorhead, successfully appeals a trial court decision in which the plaintiff, Mr. Saadati, was awarded non-pecuniary damages for a “psychological injury” arising out of a motor-vehicle accident.
Mr. Saadati was involved in five motor vehicle accidents from January 28, 2003 to March 23, 2009. This case concerns the second accident which occurred on July 5, 2005. Mr. Saadati was driving a tractor-truck without a trailer which was hit by a large vehicle driven by Mr. Moorhead. The ambulance attendants who attended at the scene of the accident noted Mr. Saadati as being emotionally “shaken” and recorded a Glasgow Coma Score of 15 indicating no abnormal signs which would reflect a brain injury.
Mr. Justice Funt of the Supreme Court of British Columbia, in his reasons for judgment (indexed as 2014 BCSC 1365), awarded Mr. Saadati non-pecuniary damages in the sum of $100,000 for a psychological injury, including personality changes and cognitive difficulties sustained as a result of the second accident. The trial judge found that Mr. Saadati had not sustained any physical injuries or a concussion, but that he was a “changed man” after the accident and, as a result, entitled to damages. This finding was based on the evidence of lay witnesses one of whom said that Mr. Saadati was not as “charming” or “energetic” after his second accident.
Mr. Saadati had not alleged a psychological injury in his pleadings and did not advance this claim during trial. Rather, his claim was based on him having sustained a brain injury (concussion). The parties did not know that the trial judge was considering a damages award on the basis of a psychological injury until he released his reasons for judgment.
The appeal was allowed and the award set aside on the grounds that Mr. Saadati was not entitled to damages for a psychological injury because he did not prove he suffered from a recognizable psychiatric illness. The Court of Appeal decision notes that this requirement is also the law in the United Kingdom, Australia, and New Zealand. In reviewing case law, the Court of Appeal notes that the plaintiff must suffer from a “visible and provable illness” or “recognizable physical or psychopathological harm.”
Notably, Mr. Saadati relies on the decision in Mustapha v. Culligan of Canada Ltd. 2008 SCC 27 in arguing that the threshold for establishing a compensable psychiatric or psychological injury is lower now than it was before Mustapha. Specifically, he relies on the following passage at paragraph 9 from the decision in Mustapha: “…I would not purport to define compensable injury exhaustively, except to say that it must be serious and prolonged and rise above the ordinary annoyances, anxieties and fears that people living in society routinely, if sometimes reluctantly, accept…”
The Court of Appeal did not accept Mr. Saadati’s argument that this passage brought a change in the law. Rather, the Court of Appeal agrees with the decision in Healy v. Lakeridge Health Corp. 2011 ONCA 55 in which the Court of Appeal for Ontario held that Mustapha did not remove the requirement that a plaintiff prove a recognizable psychiatric (or psychological) condition.
The Court of Appeal also commented on the fact that the trial judge decided the case on a basis that was neither pleaded nor argued by Mr. Saadati. The Court of Appeal notes that the trial judge ought not to have done so. Rather, the trial judge should have told counsel that he was prepared to consider a claim that had not been pleaded, given Mr. Saadati an opportunity to amend his pleadings and, if allowed, given the appellants an opportunity to call further evidence and make further submissions.
This recent British Columbia Court of Appeal decision confirms the test for proving a psychological or psychiatric injury - absent proof of a recognizable medical injury, damages cannot be awarded for a psychological or psychiatric injury. It notes that emotional stress, mental anguish and despair are not accepted as a “visible and provable illness.” Additionally, absent expert medical opinion evidence, a judge is not qualified to say what is or is not an illness. It is important to recognize that testimony from loved ones, as detailed or genuine as it may be, is not enough to prove an illness.
Further, this decision recognizes that the trial judge should not have dealt with the matter on the basis of a legal argument that was not advanced by the plaintiff without giving the parties an opportunity to address the matter. As such, it is important for parties to understand that it is unlikely for a court to consider arguments that are not raised by parties at trial.
The full BCCA decision can be found here: