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June 2017

Recovery for Mental Injuries:
Dispensing with the Requirement of Expert Evidence

Amongst the most challenging personal injury cases to defend are those where a Plaintiff's accident-related injuries are solely psychological in nature. As there is no objective evidence for defence lawyers to look to when attempting to verify or challenge a Plaintiff's account of their injuries or impairments caused by an accident, Defendants have no choice but to rely on the expertise of experts when attempting to determine the severity of a Plaintiff's psychological and emotional injuries and impairments.

The Supreme Court of Canada has released a decision that makes this determination that much more challenging for defence lawyers by finding that expert evidence of a recognized psychiatric or psychological illness is not required for a plaintiff to recover damages for mental injuries.

Recovering for Mental Injuries

The issue of whether a Plaintiff requires confirmation of psychological injuries and/or impairments was recently addressed by the Supreme Court of Canada in the decision of Saadati v. Moorhead.1The lawsuit related to the damages suffered by the Plaintiff following a motor vehicle accident where his truck was struck by a vehicle driven by the defendant. The accident was the second in a series of five motor vehicle collisions involving the plaintiff.

The trial judge found that the second accident caused the plaintiff psychological injuries, including personality change and cognitive difficulties, and awarded damages for mental injury to the plaintiff. This finding was based on the testimony of the plaintiff's friends and family, rather than an identified medical cause or expert evidence.

This finding was appealed and the British Columbia Court of Appeal allowed the appeal on the ground that the plaintiff had not demonstrated by expert evidence a medically recognized psychiatric or psychological illness.

The Supreme Court found that recovery for mental injury does not require proof of a recognizable psychiatric or psychological illness.

The Supreme Court found that recovery for mental injury does not require proof of a recognizable psychiatric or psychological illness. While expert evidence can assist in determining whether or not mental injury has been shown by a plaintiff, it is not required as a matter of law and a trier of fact's inquiry should be directed to the level of harm that the plaintiff's particular symptoms represent, and not whether an identifiable diagnosis or label could be attached to them. Where a psychiatric diagnosis is unavailable, it remains open to a trier of fact to find on other evidence adduced by the plaintiff that he or she has proven on a balance of probabilities the occurrence of a mental injury.

Potential Impact of Decision for Insurers

Given the challenges in verifying alleged psychological injuries and impairments, this decision will likely negatively impact insurers. Defendants can no longer rely solely on medical practitioners to comment on whether a plaintiff has suffered psychological injuries and impairments and is at risk that an award for damages will be made in reliance on the evidence of third parties who could act in a plaintiff's best interests.

With this development, defence lawyers will now need to be more pro-active in securing additional evidence beyond what is typically secured through the examination process. This includes will-say statements from potential witnesses who can comment on the Plaintiff's mental health. Securing this evidence early in the litigation process and securing updates as time passes will allow counsel to understand the Plaintiff's potential damages. Additionally, providing this evidence to the various medical experts retained will allow these experts to have a full picture of the Plaintiff's injuries so that they can generate a fulsome report that the defendants can confidently rely on when assessing risk leading up to trial.

Despite these practical concerns for defendants and their lawyers, the Supreme Court's decision reinforces that a Plaintiff ought to be compensated for its actual losses, regardless of whether or not the Plaintiff is able to prove that he or she suffers from a recognized psychiatric or psychological illness or impairment.

1 Saadati v Moorhead, 2017 SCC 28


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