Carfra Lawton LLP | Victoria BC

Expert Evidence Not Required to Prove a Mental Injury

In the recent case of Saadati v Moorhead 2017 SCC 28 the Supreme Court of Canada established what is and what is not required to recover damages for mental injury.

A plaintiff cannot claim compensation for personal injury for a minor transient issue such as the ordinary upset, disgust, annoyance, agitation, anxiety and fear of people living in society. A plaintiff must prove a serious and prolonged disturbance that rises above these things. Expert evidence is not required. Such injury must not be too remote and its occurrence in a person or ordinary fortitude must have been the reasonably foreseeable result of the defendant’s negligence.

The plaintiff in Saadati was in three motor vehicle accidents, and sued for damages. At trial he argued that he had suffered a mental injury as an alternative to the pleaded brain injury, which was not made out. The plaintiff led no expert evidence that he suffered a recognized psychiatric illness. He instead led evidence from three lay witnesses supporting his claim for mental injury. They testified that he was a changed man after the accidents. A psychiatrist testified, but did not make a diagnosis of a recognized psychiatric illness (nor did he diagnose the plaintiff with a concussion).

The Supreme Court of Canada agreed with the trial judge who awarded the plaintiff $100,000 damages for mental injury, and reversed the British Columbia Court of Appeal who found no basis for the award. The trial judge found that the medical cause of the psychological injury was not known.

An interesting aspect of the case was that the pleadings failed to allege mental, psychological or psychiatric injury at all, although a brain injury was alleged. The plaintiff claimed a catch all of “such further and other injuries as may become apparent through medical reports and examinations, details of which shall be provided as they become known.” The effects of the injuries were pleaded to include headaches, fatigue, dizziness, nausea and sleeplessness. All the usual heads of damage were claimed, including general damages for pain and suffering, loss of earning capacity past, present and future, loss of opportunity, loss of enjoyment of life and loss of physical health.

However, instead of providing details of other injuries when they became known, either through an amended claim or particulars of same, it would appear from the reasons that the plaintiff instead simply served a report from a psychiatrist and made arguments at trial. The Supreme Court of Canada stated that the psychiatrist diagnosed the plaintiff with mental disorders (details of which are not stated in any judgment at any level), although it was unclear what caused those disorders. It would appear service of the psychiatrist’s report and arguments by counsel at trial were sufficient to provide to the defendants ample notice of an allegation of psychological injury.

Somewhat surprisingly, plaintiff’s counsel was not criticized for failing to amend their pleadings or to provide written particulars of the injury alleged. It is unclear whether courts in the future will take a more stringent approach to providing defendants earlier notice of alleged injury, given that defendants might need to obtain one or both of evidence on examination for discovery or expert evidence served more than 84 days before trial, in order to defend such claims.

Case law summary by Giles Deshon