In a dramatic admission of medical illiteracy the Court of Appeal conceded that absent expert medical opinion evidence, a judge is not qualified to say what is, or is not, an illness (Saadati v. Moorhead,2015 BCCA 393). The trial judge refused to accept the claimant had suffered a brain injury but found that he had suffered a psychological one and awarded him $100,000 for pain and suffering. According to the the Court of Appeal this finding was without medical support and therefore unsupported.
This personal injury lawsuit was the result of a simple car accident. The claimant was operating a 2000 Freightliner tractor-truck on Front Street approaching Begbie Street in New Westminster when the vehicle was hit by a Hummer driven by the defendant.
The claimant had been involved in four motor vehicle accidents which made the assessment difficult. Trial judge found no physical injuries nor any aggravation of pre-existing physical injuries related to his significant prior chronic pain as a result of the car accident. Two days after the accident the claimant provided a written statement to an Insurance Corporation of British Columbia (“ICBC”) employee stating that at the time of the collision he still had pain in the right side of my shoulder and low back and neck from a prior car accident.
Unfortunately, the trial judge did not refer to any authorities when dealing with the psychological and emotional effects of the accident. The only authority he referred to was Clements v. Clements, 2012 SCC 32,  2 S.C.R. 181. That case deals only with proof of causation, not damages.
The appellants argued that for damages to be compensable a claimant must prove he or she suffers from a medically recognized psychiatric or psychological illness or condition. There is considerable authority in support of that position. In Odhavji Estate v. Woodhouse, 2003 SCC 69,  3 S.C.R. 263, Mr. Justice Iacobucci said:
 Although courts have been cautious in protecting an individual’s right to psychiatric well-being, compensation for damages of this kind is not foreign to tort law. As the law currently stands, that the appellant has suffered grief or emotional distress is insufficient. Nevertheless, it is well established that compensation for psychiatric damages is available in instances in which the plaintiff suffers from a “visible and provable illness” or “recognizable physical or psychopathological harm”: see for example Guay v. Sun Publishing Co.,  2 S.C.R. 216, and Frame v. Smith,  2 S.C.R. 99. Consequently, even if the plaintiffs could prove that they had suffered psychiatric damage, in the form of anxiety or depression, they still would have to prove both that it was caused by the alleged misconduct and that it was of sufficient magnitude to warrant compensation. …[Emphasis added.]
Although procedural fairness was not advanced as an independent ground of appeal the Court of Appeal felt compelled to comment on the fact that the trial judge decided the case on a basis neither pleaded nor argued by the claimant. In Mr. Justice Frankel’s view, he ought not to have done so. Where a trial judge determines a matter on the basis of a legal theory that was not raised in the pleadings and was not argued at trial, the trial judge commits an error of law. As Judge Frankel further comments,
 It is apparent the trial judge turned his mind to awarding damages on the basis of a psychological injury only after he determined Mr. Saadati had failed to prove the case as advanced by him at trial, namely, that he sustained a brain injury in the second accident. At this point in his deliberations, the judge should have notified counsel he was prepared to consider a claim that had not been pleaded, given Mr. Saadati an opportunity to apply to amend his pleadings, and, if the amendment were allowed, given the defendants, now appellants, an opportunity to call further evidence and to make further submissions: see Guastelluccia v. Scott (1978), 20 O.R. (2d) 241 at 244 (C.A.). I have no doubt that had the defendants been properly notified, they would have, at a minimum, drawn the judge’s attention to the same authorities they have drawn to this Court’s attention.
The Court of Appeal dismissed the lawsuit, taking away the award of $100,000 for pain and suffering, leaving the claimant with no compensation for his non-“injury”.
The trial judge was found to be wrong in taking a “robust and pragmatic” approach. The trial judge found that the accident caused psychological injuries, including personality change and cognitive difficulties, despite there not being enough evidence to satisfy him that there was a physical injury or concussion. However, to the trial judge’s credit he found as a fact that, “The plaintiff’s personality change and cognitive difficulties such as slowed speech, which could not be hidden from his friends and family, are observable consequences of the plaintiff’s psychological injuries”.
Do I hear the squeak of the Supreme Court of Canada’s door?
Posted by Personal Injury Lawyer Mr. Renn A. Holness, B.A. LL.B.