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Proving Mental Injury (Psychological Injury) In ICBC Personal Injury Claims – Expert Evidence Not Required

The Supreme Court of Canada in Saadati v. Moorhead 2017 SCC 28 has set a precedent which helps injured claimants access justice more easily against ICBC and other insurance companies for mental injuries such as depression, anxiety, post-traumatic stress disorder and somatic symptom disorder.

In this case, the injured claimant was injured in a motor vehicle accident and sued the defendant in negligence claiming he suffered physical injury and mental injury from the accident.

At the trial level, the BC Supreme Court found that the accident had indeed caused the injured claimant’s mental injury, including a personality change and cognitive difficulties, without any expert evidence from a psychiatrist or a psychologist. The trial judge based his ruling instead on the testimony of the injured claimant’s friends and family who testified that prior to the motor vehicle accident he was a funny, energetic, and charming individual prior to the accident, but following his close relationships deteriorated and he had become sullen and prone to mood swings. The trial judge awarded the injured claimant $100,000.00 for pain and suffering.

The defendants appealed arguing that the injured claimant’s claim could not succeed because there was no expert evidence supporting the finding of a mental injury. This argument was based on the law which existed at the time which required the injured claimant to prove that they suffered from a “clinically diagnosed, recognizable psychiatric illness” according to the classification or mental disorders in the Diagnostic and Statistical Manual of Mental Disorders (“DSM”).

The case proceeded to the Supreme Court of Canada.

The main issue that the Supreme Court of Canada considered was how to define a “mental injury” in a claim of negligence and how a “mental injury” can be proven to exist in court. More specifically, the issue was whether injured claimants were required to present the court with medical expert evidence diagnosing a mental injury that fell within a specific DSM category in order to prove that they suffered a mental injury as a result of negligence or whether a trial judge could make that finding without expert evidence.

The Supreme Court of Canada took issue with the historical requirement that to compensate for mental injury, an injured claimant would need to obtain relevant expert testimony from the medical field as proof that they he/she suffered a “clinically diagnosed, recognizable psychiatric illness”. The court emphasized that to confine compensable mental injury to conditions identifiable with 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”.

The Supreme Court of Canada also took issue with how mental injuries were treated differently from physical injuries under the law. The concern was that there was no similar requirement of expert evidence and specific diagnoses according to a medical classification for physical injuries. The court noted that having different and more stringent requirements for mental injury claims would lead to “less protection [for] victims of mental injury…for no principled reason”. In discussing this, the court made clear that even without requiring expert testimony to prove mental injury, compensation for mental injury would only occur where there was non-expert evidence (such as testimony from the injured claimant and his/her friends and family) establishing a serious and prolonged injury that rose “above the ordinary annoyances, anxieties, and fears that come with living in civil society”.

The Supreme Court of Canada restored the trial judge’s finding that the injured claimant suffered a mental injury and the award for pain and suffering. In doing so, it was noted that although a lack of recognized diagnosis is no longer a bar to recovery of damages for mental injury, it would continue to be of assistance to trial judges in determining whether a mental injury has been demonstrated.

The impact of this case on personal injury law is incredibly significant. Now, mental injury is treated the same as physical injury by our courts in that damages may be awarded for mental injury based on the testimony of lay witnesses and without expert evidence establishing an identifiable medical diagnosis or condition.

See our previous blog post about the definition of mental injury as established by this same case.

Tags: Awards for Mental Distress, Emotional Distress, psychiatric injury, Psychological Injuries

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"Jacqueline A. Small is a personal injury lawyer with over 15 years of experience and a partner with Holness Law Group."

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