Contributed by Pouya Dabiran-Zohoory
Canadian Tort law has developed to require four broad criteria to satisfy a claim in negligence: 1) A duty of care which is owed to the plaintiff, 2) a breach of that duty which, 3) leads to damages, and 4) a legal and factual causal relationship. Historically, the common law has been hesitant to recognize non-physical injury as compensable, with additional requirements for proving psychiatric injury. Canadian common law has been shifting away from this requirement, with both the Mustapha v Culligan (Mustapha) decision in 2008 and the recent decision of Saadati v Moorhead (Saadati) in 2017, discussed here. Saadati has made it less onerous for plaintiffs to prove “psychiatric” injury.
The main issue in Saadati was defining “mental injury” in a claim of negligence, and deciding how that can be determined to exist in court. More specifically, the issue was whether a claim of mental injury must conform with what an expert witness from the medical community has defined as a psychiatric injury, or whether the determination necessarily belongs to the trier-of-fact.
Facts and Judicial History
The plaintiff, appellant to the Supreme Court of Canada (SCC), was involved in a car accident when his tractor-truck was struck by a vehicle driven by the defendant, the respondent. Although the appellant’s truck was damaged, he seemed uninjured. This accident was the second in a series of five accidents that the appellant suffered between the years of 2003 and 2009. The appellant sued the respondents, the three parties involved in the first three accidents, for non-pecuniary damages and past income loss, before suffering the two later accidents.
At the Supreme Court of British Columbia, the respondents collectively admitted liability for the accidents but took the position that the appellant did not suffer any damage. The trial judge concluded the appellant had not suffered any physical damages, but had suffered “psychological injuries, including personality change and cognitive difficulties” based on testimonies of friends and family of the appellant. The British Columbia Court of Appeal decided that the appellant had failed to prove he had suffered a medically recognized psychiatric or psychological illness or condition, and therefore no injury, holding that such illness or condition must be demonstrated by “expert medical opinion evidence”.
The court began the analysis with a look into how the common law has historically viewed negligently caused mental injury. The judgement outlined the early common law’s “suspicion and sometimes outright hostility” toward such claims. The court showed how this skepticism continued into the past century by highlighting that mental injury was not compensable unless accompanied by physical injury. This, along with further barriers to recovery outlined in common law cases surrounding classes of victims and different types of proximity, were used to show the how difficult recovery has been in common law jurisdictions globally.
The court differentiated Canadian common law developments by citing Mustapha as the leading authority for the requirements to recovery for mental injury which held them to be no different than the “criteria applicable to any successful action in negligence”. The court held that the additional barriers to recovery for mental injury weren’t “based on legal principle, but on policy […] founded upon dubious perceptions of, and postures towards, psychiatry and mental illness in general: that mental illness is subjective or otherwise easily feigned or exaggerated; and that the law should not provide compensation for trivial matters”.
The court took issue with the premise that to compensate for mental injury, a plaintiff would need to obtain relevant expert testimony from the medical field as proof that they have suffered a “clinically diagnosed, recognizable psychiatric illness”. The court emphasized that to confine compensable mental injury to conditions identifiable with these diagnostic tools is suspect as a matter of legal methodology, and that the law is not concerned with accurate diagnoses, but rather with “symptoms and their effects”.
Responding to potential criticisms of the judgement leading to indeterminate liability, the court emphasized that the framework for negligence – particularly the proximity analysis in the duty of care component – will satisfactorily contain potential liabilities. In a transsystemic fashion, the court drew a comparison to Québec Civil law which allows compensation for “moral” injury under article 1457, to show that liability can still be contained.
The court also took issue with treating mental injury and physical injury as distinct under the law. The concern was that requiring a claim of mental injury in negligence to be classified as such in the medical community, but not requiring the same condition for physical injury claims, would lead to “less protection [for] victims of mental injury” and “for no principled reason”.
Having said this, the court was cognizant of the difference in nature between mental and physical injuries – that the latter is more readily apparent than the former. In discussing this, the court made clear that even without requiring expert testimony to prove mental injury, the courts will still only compensate for mental injury which “rises above the ordinary annoyances, anxieties, and fears that come with living in civil society”.
Lastly, the court was very clear in maintaining that expert testimony can still be helpful in determining whether or not mental injury has occurred, by determining, for example, how seriously the plaintiff’s cognitive functions were impaired. The court even went so far as to say that not adducing relevant expert evidence to assist the triers-of-fact can run the risk of damaging plaintiffs’ cases. Nevertheless, the court reiterated that, while expert testimony may help a claimant prove the existence of mental injury, it is not required as a matter of law.
The court found the trial judge to have been correct in their application of the law, and found that mental injury had occurred even without the existence of expert testimony.
The court’s primary concern in Saadati seemed to be the abdication of judicial responsibility in cases of negligence causing mental injury. Specifically, the court repeatedly mentioned how classification becoming a necessary component of the law of negligence would be problematic.
It is unclear in the judgement, however, why it is not possible to take into account expert testimony regardless of whether the expert believes that the plaintiff’s injury falls within a specific classification under diagnostic lists such as the Diagnostic and Statistical Manual of Mental Disorders (“DSM”) and the International Statistical Classification of Diseases and Related Health Problems (“ICD”) which were mentioned in the case. The court’s concern with these diagnostic lists not always being at the edge of scientific development in the field are reasonable. However, if this is the primary concern, it is unclear why an expert cannot still be required to inform the deliberation over whether psychiatric injury has occurred, based on that expert’s understanding of the current state of knowledge. Justice is important, and therefore it is equally important that there not be a miscarriage of justice based on faulty assumptions, which the court itself emphasized earlier in the case.
It is possible that the court wished to expand the scope of compensation for recovery of mental injury to include not only psychiatric harm, but also pure emotional harm, which the courts have historically not allowed compensation for, unless accompanied by physical injury. This isn’t objectionable from the perspective of redefining what constitutes justice in a case of negligence.
However, even if the courts intend to treat psychiatric and pure emotional injuries as the same under the umbrella of “mental injury”, how will the courts differentiate between mental injuries which rise “above the ordinary annoyances, anxieties, and fears that come with living in civil society”, and others which do not? As Dr. Stephen Smith notes, it could be problematic to conflate emotional harm with psychiatric harm, since the Anns-Cooper test for duty of care developed in Cooper v Hobart is not designed to limit liability based on the nature of the injury.
Perhaps using the term “mental harm” instead of “mental injury” would be helpful in alleviating some confusion. The court specified that they are concerned with “symptoms and effects”. An injury leads to symptoms and effects which cause harm to an individual, and so the true justiciable question may be whether the plaintiff suffered mental harm rather than a mental injury, which is a question a trier-of-fact may be better able to address without assistance from a medical expert. This is because the question would focus on how the plaintiff has been negatively affected, rather than diagnosing the injury leading to those effects.
Nonetheless, the precedent set by this case may help alleviate access to justice concerns for plaintiffs who cannot afford experts but have suffered very real mental harm, for which they should be compensated.
Pouya Dabiran-Zohoory is a Senior Online Editor with the McGill Journal of Law and Health, with a keen interest in sustainable development, specifically with a focus on climate change and its effects on human and animal health. He holds a Bcomm in law and business from Ryerson University. Since he joined the Faculty of Law at McGill University in 2016, he has taken an interest in how the common law, civil law, and regulations address health issues.