Proving psychiatric injuries – Expert evidence is not necessarily required
In Saadati v Moorhead, 2017 SCC 28, a recent decision of the Supreme Court of Canada, Mr. Justice Brown held that a finding of legally compensable psychiatric injury (which the court refers to as “mental injury”) need not rest on the plaintiff proving a recognized psychiatric injury. To establish psychiatric injury, plaintiff must only show that they suffer from a serious and prolonged disturbance that rises above the ordinary annoyance, anxieties, and fears that come with living in a civil society. Although expert evidence can assist a trier of fact in determining whether or not a psychiatric injury has been shown, it is not necessary. It remains open to the trier of fact to find on other evidence that the plaintiff has proven, on the balance of probabilities, the occurrence of a psychiatric injury.
On July 5, 2005, Mohsen Saadati was driving a tractor-truck in New Westminster, BC, when a vehicle driven by Grant Moorehead struck his vehicle. This was the second in a series of five motor vehicle collisions between January 2003 and March 2009 involving Mr. Saadati.
The trial judge concluded that Mr. Saadati had not demonstrated any physical injury resulting from the accident. However, he did find that it caused psychological injuries, including a personality change and cognitive difficulties, and awarded Mr. Saadati $100,000 for non-pecuniary damages. He based his decision on the testimony of Mr. Saadati’s friends and family, rather than expert medical opinion.
Mr. Moorehead appealed. He argued that the trial judge erred in awarding damages for psychiatric injury when Mr. Saadati had not proven a medically recognized psychiatric or psychological illness or condition. The Court of Appeal agreed and added that a plaintiff must demonstrate such an illness or condition through expert medical opinion evidence.
The Supreme Court of Canada allowed Mr. Saadati’s appeal and restored the trial judge’s decision.
The Issue Before the Supreme Court
The Supreme Court of Canada had to determine whether the trial judge erred in awarding damages for a mental injury that did not correspond to a proven, recognized psychiatric illness.
Requirements for Recovery for Psychiatric Injury
According to another Supreme Court decision, Mustapha v Culligan of Canada Ltd., 2008 SCC 27, the ability of a plaintiff to recover in negligence for a psychiatric injury depends on whether he or she can satisfy the general criteria applicable to any successful action in negligence: a duty of care, a breach, causation, and remoteness. In Mustapha, the Court held that not all mental disturbances will amount to true “damage” qualifying as a psychiatric injury.
No justification for requirement to demonstrate recognized psychiatric illness
Canadian lower courts have required plaintiffs alleging psychiatric injury to show that the injury manifested itself in a way that allows a psychiatrist to diagnose a clinical psychiatric illness. In Saadati, The Supreme Court held that this requirement is inherently suspect as it places the categories of mental and emotional harm for which damages may be recovered in the hands of psychiatry, not the courts.
Psychiatrists largely rely on tools and diagnostic criteria found in the Diagnostic and Statistical Manual of Mental Disorders (“DSM”) and the international Statistical Classification of Diseases and Related Health Problems (“ICD”). Resorting to the DSM and ICD in the context of litigating claims for psychiatric injury is problematic because, rather than fostering objectivity and certainty of outcomes, using these diagnostic tools often “relegates the law of negligence to allowing a sometimes meandering path as it is cleared by the cutting edge of au courant thinking in modern psychiatry.”
The Court held that a trier of fact adjudicating a claim of psychiatric injury is not concerned with diagnosis, but with symptoms and their effects. Therefore, there is no necessary relationship between reasonably foreseeable mental injury and a diagnostic scheme. A negligent defendant need only be shown to have foreseen an injury, rather than a specific diagnosable mental injury. As a result, a plaintiff need not establish, on a balance of probabilities, that he or she has suffered a clinically diagnosed or recognizable psychiatry injury.
No justification for delineating between the requirements of physical and psychiatric or psychological illness
The Court held that the law of negligence should treat psychiatric and physical injuries in the same manner. If the law required those who allege a psychiatric injury to prove their condition meets the threshold of a recognizable psychiatric illness, while not requiring the same level of proof from plaintiffs alleging physical injury, it would amount to unequal protection for victims of mental injury.
Test for Recovery for Psychiatric Injury
Although the Supreme Court held in Saadati that there is no justification for tort law to treat physical and psychological or psychiatric injuries differently, Mr. Justice Brown acknowledged that a psychiatric injury is not always as readily demonstrable as a physical injury.
When assessing whether a plaintiff has established the requisite degree of mental disturbance, the trier of fact will consider how seriously the the injury impaired the plaintiff’s cognitive functions and participation in daily activities, the length of the impairment, and the nature and effect of any treatment.
In Mr. Saadati’s case, the Court found that, as a result of the accident, he was a “changed man” and that his close personal relationships had deteriorated. He was, therefore, entitled to damages for mental illness.
What this Means for the Future
- A mental injury that is caused by a defendant’s negligence, like physical injury, can be established on the evidence in a variety of ways.
- There are no special rules that restrict a plaintiff’s ability to prove a right to compensation for psychiatric injury, particularly when the predominant diagnostic tools, such as the DSM, are subject to constant revision based upon any number of influences and considerations.
- The court’s concern is not, and has never been, with diagnosis, but with symptoms and their effect.
- Collateral evidence, such as the testimony of family, friends, and coworkers, as well as surveillance and inconsistent statements or activities is as important in defending claims for psychiatric injury as it is for physical injuries.
- Defendants and their insurers are well advised to fully investigate claims for psychiatric injury notwithstanding the tenuous relationship with DSM classifications.
- The lack of a DSM diagnosis, however, may well still be fatal to a claim for psychaitric injury. As the Court noted, the lack of a psychiatric diagnosis and expert opinion at trial is something that a trier of fact must consider.
- It remains open to defendants, in rebutting a claim for a psychiatric injury, to lead expert evidence establishing that the defendant’s negligence could not have caused any psychiatric injury or, at least, one recognized by psychiatry.
- Expert opinion, or the lack of it, remains something to be weighed by the trier of fact.
The full effect of the court’s decision is yet to be known. Of some concern, for, example, are the possible unintended ramifications of the Court’s decision to forego the requirement of an identifiable psychiatric illness on claims for nervous shock pursuant to provincial legislation governing fatal accidents such as the BC Family Compensation Act