Supreme Court of Canada Puts Insurers on Notice in Saadati v. Moorhead: Proof of a Recognized Psychiatric Injury is Not a Precondition to Recovery
June 5, 2017
By Lauren Cicin, at McInnes Cooper
On June 2, 2017, the Supreme Court of Canada decided that where a plaintiff advances a claim for negligently caused psychological or psychiatric injury, it is generally sufficient the pleadings allege some form of such an injury. Pleadings that even suggest an injury of this type might be sufficient. In addition, while to recover, the plaintiff must show the disturbance is serious, prolonged and more than ordinary emotional upset or distress, and expert evidence can assist to prove the claim, proof of a recognized psychiatric illness is not a precondition to recovery.
The Court’s decision in Saadati v. Moorhead arguably lowers the bar plaintiffs must meet to establish a claim for psychological and psychiatric injuries. For insurers, this means:
Be alert for potential claims. A court will likely construe a plaintiff’s pleadings liberally when determining whether they are sufficient to suggest a psychological or psychiatric injury claim. Insurers should, therefore, be mindful of any allegations in the pleadings a court could construe as raising such a claim.
Oppose a psychological injury raised only at trial. Strongly oppose a claim for psychological or psychiatric injury the plaintiff argues at trial but did not previously allege or raise in their pleadings.
The Plaintiff does not require expert evidence but the Defendant might. A plaintiff must show that a psychological or psychiatric disturbance is both prolonged and more than ordinary emotional upset or distress but expert evidence establishing a recognized psychiatric injury is not required. However, even if the plaintiff does not submit expert medical evidence and/or establish a recognized psychiatric injury, a defendant insurer is wise to obtain expert evidence to prove the accident cannot have caused any psychological or psychiatric injury, or at least none known to psychiatry, to refute the claim.
In Saadati v. Moorhead, the plaintiff was involved in a series of five motor vehicle accidents. He commenced an action against the motorists involved for damages for personal injury damages. The trial judge decided the plaintiff had not proven he suffered a physical injury. However, based on the testimony of the plaintiff’s friends and family – not on an identified psychological or psychiatric injury or expert evidence – the judge found that his personality had changed after the accident had established a psychological injury. The insurer appealed. The Court of Appeal allowed the appeal, deciding damages for mental injury requires a plaintiff to prove, with expert medical opinion evidence, a “recognizable psychiatric illness”. The Court also decided the trial judge erred by deciding the case on a basis the plaintiff neither pleaded nor argued. The plaintiff appealed to the Supreme Court of Canada and, in a unanimous decision, succeeded:
Sufficiently broad pleadings and no objection. The broad heads of damages alleged in the plaintiff’s pleadings and his many submissions regarding a “psychological”, “emotional” or “psychiatric” reaction – to which the defendant did not object at trial – were sufficient to put the defendant on notice of the plaintiff’s claim. While courts should not decide cases on grounds not raised, in claims for negligently caused psychological or psychiatric injury it is generally sufficient that the pleadings allege some form of such an injury. Notably, in this case the plaintiff’s allegations did not expressly refer to psychological, psychiatric mental or emotional injury. He claimed, “such further and other injuries as may become apparent through medical reports and examinations, details of which shall be provided as they become known; and the effects or results of the said injuries upon the Plaintiff include headaches, fatigue, dizziness, nausea and sleeplessness.”
Expert evidence is not necessary for recovery. The Court confirmed it had never required a plaintiff to show a recognized psychiatric illness as a precondition to recovery. The Court emphasized that, “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”. The recovery for such an injury in negligence law depends on the plaintiff satisfying the criteria applicable to any negligence action: a duty of care, a breach, damage and factual causation between the breach and damage. However, the threshold the Court prescribed in its 2008 decision in Mustapha v. Culligan of Canada Ltd. for proving psychological injury – whether the occurrence of psychological harm in a person of ordinary fortitude was the reasonably foreseeable result of the defendant’s negligent conduct – informs this analysis.
The recovery threshold. To establish a psychological or psychiatric injury, a plaintiff must show the disturbance is serious and prolonged and rises above the ordinary annoyances, anxieties and fears that come with living in civil society. Expert evidence can assist in determining whether an injury has been shown, but is not required. It remains open to a trier of fact to find, on other evidence, the plaintiff has proven on a balance of probabilities that they have suffered a psychological injury. It also remains open to a defendant, in rebutting a claim, to call expert evidence establishing the accident cannot have caused any psychological or psychiatric injury, or at least none known to psychiatry.
Please contact your McInnes Cooper lawyer or any member of the Insurance Defence Team @ McInnes Cooper to discuss this topic or any other legal issue.
McInnes Cooper has prepared this document for information only; it is not intended to be legal advice. You should consult McInnes Cooper about your unique circumstances before acting on this information. McInnes Cooper excludes all liability for anything contained in this document and any use you make of it.
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