Mental injury has also been referred to by courts as psychological injury, psychiatric injury, emotional trauma, nervous shock, hysteria, mental distress, and a host of medical terms such as conversion disorder, somatic system disorder, post traumatic stress disorder and clinical depression. The Supreme Court of Canada in Saadati has synthesized all these terms down to one, Mental Injury.
Mental injury is defined as damage which is serious, prolonged and rises above the ordinary emotional disturbances that annoy the public. Mental Injury is a civil cause of action which protects the Canadian right to be free from negligent interference with one’s mental health.
Proximity and remoteness have been pulled from the large legal toolkit as analytical concepts to be applied to Canadian mental injury claims.
The proximity analysis created by the Supreme Court of Canada  seeks out the “close and direct” relationship between the claimant and the defendant which is part of the common law duty of care(Donoghue v. Stevensontop 10 caselaw list for personal injury lawyers).
The remoteness analysis has also been endorsed by our highest court, personal injury lawyers take note, as part of the inquiry into a claim of mental injury. The remoteness inquiry asks whether “the harm [is] too unrelated to the wrongful conduct to hold the defendant fairly liable”. A quick read of Mustapha v. Culligan of Canada Ltd., 2008 SCC 27 should do the trick.

A finding of legally compensable mental injury need not rest on the claimant proving a recognized psychiatric illness. To follow the classification of mental and behavioural disorders contained in 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”) would be, to relegate the law of negligence to, “following a sometimes meandering path as it is cleared by the cutting edge of au courant thinking in modern psychiatry — wherever it may lead, or from wherever it may retreat.“(para 33 of Saadati). Following these  these iterative diagnostic tools will not foster objectivity, certainty and predictability of outcomes.

The Supreme Court of Canada has changed the terminological landscape of psychological and psychiatric injuries in Canada. Personal injury lawyers in British Columbia will have to get used to using the term “mental injury” instead of the array if mental diseases and conditions commonly used by psychiatrists. A  finding of legally compensable mental injury no longer needs to rely on the claimant proving a recognized psychiatric illness.
Posted by Mr. Renn A. Holness, B.A. LL.B.- Personal injury lawyer in Vancouver since 1995.

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