Saadati v. Moorhead, 2017 SCC 28

The Supreme Court of Canada held that an expert’s diagnosis of a psychological injury was not required for the Plaintiff to succeed in recovering damages for same.

Released June 2, 2017 | Full Decision [Document Bank]

The Supreme Court of Canada overturned the decision of the Court of Appeal (9-0), which had reversed the decision of the Trial Judge, who found that the Plaintiff had psychological injuries including personality change and cognitive difficulties. This finding did not rest on an identified medical cause or expert diagnostic evidence, but was based on the testimony of the Plaintiff’s friends and family to the effect that his personality had changed for the worse after a 2005 motor vehicle accident. The Court of Appeal allowed the appeal on the ground that the Plaintiff had not demonstrated by expert evidence a medically recognized psychiatric or psychological injury. The Supreme Court of Canada disagreed that an expert diagnosis was required in order to recover damages

At paragraphs 1-2 of the decision, Justice Brown stated:

This appeal… concerns principally the application of the common law of negligence to claims for mental injury.  A trial judge awarded damages for mental injury to the appellant, Mohsen Saadati, on the strength not of expert evidence, but of the testimony of lay witnesses to the effect that, after the appellant’s involvement in an automobile accident caused by the respondents, his personality had changed. The British Columbia Court of Appeal reversed, holding that recovery for mental injury requires a claimant to prove, with expert medical opinion evidence, a “recognizable [or recognized] psychiatric illness”.

This Court has, however, never required claimants to show a recognizable psychiatric illness as a precondition to recovery for mental injury. Nor, in my view, would it be desirable for it to do so now. Just as recovery for physical injury is not, as a matter of law, conditioned upon a claimant adducing expert diagnostic evidence in support, recovery for mental injury does not require proof of a recognizable psychiatric illness. This and other mechanisms by which some courts have historically sought to control recovery for mental injury are, in my respectful view, premised upon dubious perceptions of psychiatry and of mental illness in general, which Canadian tort law should repudiate. … I therefore conclude that a finding of legally compensable mental injury need not rest, in whole or in part, on the claimant proving a recognized psychiatric illness.

Counsel ought not to interpret the Supreme Court of Canada’s decision to mean that evidence of a psychological injury is unnecessary for recovery of damages; the injury must still be proven to be “serious and prolonged”.  However, expert evidence substantiating this finding, although helpful, is not a precondition to said substantiation.

It will be intriguing to see whether the Court’s finding will be transferrable to all sorts of injuries, including those extending beyond psychological injuries.  This is particularly important given the increasing costs in obtaining expert reports and the relative ease and inexpensiveness of obtaining statements of lay persons, family members, employers, etc..  Moreover, this author has a particular interest to follow the impact of this ruling on cases where the Plaintiff subjectively complains of chronic pain.  Like a psychological injury, although a chronic pain diagnosis by a specialist may strengthen a Plaintiff’s claim, a chronic pain condition may also be substantiated by one’s family and peers.  In these instances, the credibility of the Plaintiff and his/her supportive witnesses will be critical.

Read the full decision on the OTLA Document Bank
Steven Glowinsky
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Steven Arie Glowinsky was called to the Ontario Bar in 2010 and is an associate at Pace Law Firm in Toronto, ON.