Proving Mental Injuries: Is Expert Evidence Required?
What qualifies as a mental injury and how can it be proven? This question was recently addressed by the Supreme Court of Canada in Saadati v. Moorhead.
The law as developed by the Canadian lower courts prior to Saadati required claimants alleging mental injury to show that such injury had manifested itself to an expert in psychiatry in the form of a clinically diagnosed, recognizable psychiatric illness. Usually, this was done by the courts with reference to the Diagnostic and Statistical Manual of Mental Disorders (“DSM”), published by the American Psychiatric Association, and the International Statistical Classification of Diseases and Related Health Problems (“ICD”), published by the World Health Organization.
However, in Saadati, the Supreme Court of Canada rejected this requirement and held that it is not necessary, in order to support a finding of legally compensable mental injury, for a claimant to adduce expert evidence or other proof of a recognized psychiatric illness.
Facts of the case and history of litigation
Saadati was involved in a motor vehicle accident and sued the defendants for negligence. The trial judge concluded that Saadati had not demonstrated any physical injury resulting from the accident. However, the trial judge found that the accident caused Saadati “psychological injuries, including personality change and cognitive difficulties”. This conclusion was not based on expert evidence but rather on the testimony of friends and family of Saadati to the effect that, after the accident, his personality changed. In particular, the witnesses testified that Saadati, once a funny, energetic, and charming individual, had become sullen and prone to mood swings and that his close relationship with family and friends had deteriorated. They also testified that Saadati complained of headaches. Based on these findings, the judge awarded Saadati $100,000 in non-pecuniary damages for psychological injury arising out of the motor vehicle accident.
The British Columbia Court of Appeal reversed the trial judge's finding and award, holding that the recovery for mental injury requires a claimant to prove, with expert medical opinion evidence, a “recognizable [or recognized] psychiatric illness”. Saadati appealed the Court of Appeal’s judgment to the Supreme Court of Canada.
The BC Court of Appeal’s decision was in line with the decision of the Court of Appeal for Ontario in Healey and Lakeridge Health Corporation et al., where the Honourable Mr. Justice Sharpe, writing for the majority, found that the although the evidence showed that the claimants in that case had suffered psychological injuries, in the absence of accompanying harm to a body part, negligence law provides no compensation for psychological injury unless it is a “recognized psychiatric illness”.
The Supreme Court of Canada’s Decision
The Supreme Court of Canada allowed the appeal by Saadati, rejecting the holding of the BC Court of Appeal and that of the Court of Appeal for Ontario in Healey, and restored the trial judge’s award.
The Court rejected the Court of Appeal’s holding confining compensable mental injury to recognizable psychiatric illness as inherently suspect as a matter of legal methodology. The Court argued that, although diagnostic tools, such as the DSM or the ICD, are useful for treatment purposes, a trier of fact adjudicating a claim of mental injury is not concerned with diagnosis, but with symptoms and their effects. The Court held that a trier of fact’s inquiry should be directed to the level of harm that the claimant’s particular symptoms represent, not to whether a label should be attached to them.
The Court also held that expert opinion evidence is not required as a matter of law in determining whether the claimant has proven a mental injury. It remains open to a trier of fact to find on other evidence adduced by the claimant, in the absence of expert evidence, that he or she has proven on a balance of probabilities the occurrence of mental injury. A lack of diagnosis can be weighted against evidence supporting the existence of a mental injury, but cannot on its own be dispositive.
The Court, in reaching its decision, expressed particular concern over the disparate treatment of those suffering personal injury and those suffering psychological injury that such a requirement would create. It found that imposing a requirement that claimants alleging psychological injury prove that their condition meets the threshold of “recognizable psychiatric illness”, while not imposing a corresponding requirement on claimants alleging physical injury, accords unequal protection to victims of mental injury. The Court pointed dubious perceptions and social attitudes regarding mental illness that formed some of the basis of the historically disparate treatment by the Courts:
The view that courts should require something more is founded not on legal principle, but on policy — more particularly, on a collection of concerns regarding claims for mental injury (including those advanced in this appeal by the intervener Insurance Bureau of Canada) 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” but should foster the growth of “tough hides not easily pierced by emotional responses” … The stigma faced by people with mental illness, including that caused by mental injury, is notorious (J. E. Gray, M. Shone and P. F. Liddle, Canadian Mental Health Law and Policy (2nd ed. 2008), at pp. 139 and 300-301), often unjustly and unnecessarily impeding their participation, so far as possible, in civil society. While tort law does not exist to abolish misguided prejudices, it should not seek to perpetuate them.
The decision of the Supreme Court in Saadati is another move away from the historical suspicion and differential treatment of the courts towards claim of damages for psychological injuries. Those claiming psychological injuries will, due to the often latent nature of these injuries, continue to face greater difficulty meeting the evidentiary burden to prove these injuries. However, they no longer face a threshold legal test that places additional burdens not imposed on physical injuries.
Although the Court held that expert medical evidence is not strictly required, it cautioned that this did not mean that expert evidence cannot assist in the determination of whether or not a mental injury has been shown. As noted by the Court, experts can provide opinion evidence on the how seriously the claimant’s cognitive functions and participation in daily activities were impaired, the length of such impairment, and the nature and effect of any treatment. Failing to adduce relevant expert evidence to assist triers of fact runs the risk of the claimants failing to meet their evidentiary burden.
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 Saadati v. Moorhead, 2017 SCC 28
 Healey and Lakeridge Health Corporation et al., 2011 ONCA 55