Physical and mental injury equal under the law: SCC does away with a "recognizable psychiatric illness"
By Alan Melamud
Mental injury is typically an issue for personal injury, but has arisen from time to time in the commercial context when consumers claim they have experienced inordinate mental suffering from the failure of a business’s products or services. Historically, the courts have required plaintiffs to establish a “recognizable psychiatric illness” to recover in a negligence action for mental injury, raising the burden on plaintiffs to prove their case. In Saadati v. Moorhead, however, the Supreme Court of Canada removed this burden, holding that the “recognizable psychiatric illness” threshold for mental injury is not a requirement in Canadian law.1
In Saadati, the plaintiff sued a number of defendants for injuries suffered in five different motor vehicle accidents from January 2003 and March 2009. At trial, the British Columbia Supreme Court found that the plaintiff had not suffered any physical injuries, but concluded that the plaintiff had suffered mental harm, on the basis of testimony of friends and family that the plaintiff’s personality had changed following the accidents. The trial judge awarded $100,000 in damages.
The British Columbia Court of Appeal reversed the trial judge on the basis that the plaintiff had not led any expert evidence that he had suffered from a recognizable psychiatric illness. On this basis, the Court of Appeal concluded that no action for mental injury could be made out. The plaintiff appealed to the Supreme Court of Canada, which allowed the appeal and restored the trial judgment.
PHYSICAL AND MENTAL INJURY ARE SUBJECT TO THE SAME LEGAL REQUIREMENTS
The Supreme Court of Canada’s decision rested on the premise that both physical and mental injury should be subject to the same legal requirements. As there is no requirement to establish a diagnostic label in cases of physical injury, the Court concluded that there is no basis to require such an additional hurdle for mental injury. In the Court’s view, the additional hurdle was based on “dubious perceptions” of mental injury as easier to feign and exaggerate than physical injury and more likely to be trivial. The Court held that there was no basis for such concerns, and that the law should not countenance the perpetuation of the stigmatization of mental injury and illness. Instead the Court endorsed the principle that the same protection afforded individuals from interference with their physical integrity should apply to their mental integrity.
In addition, the Court questioned the usefulness of relying on psychiatric labels to identify and establish mental injury. The Court noted that what is and what is not a psychiatric illness is constantly evolving and changing, and therefore the reliance on psychiatric labels for the purpose of negligence law only inserts greater uncertainty and unpredictability.
Accordingly, the Court found that the ordinary requirements for liability in negligence law are sufficient for both physical and mental injury, namely: (1) that the defendant owed a duty of care to the plaintiff; (2) that the defendant breached that duty of care; (3) that the plaintiff sustained damage; and (4) that such damage was caused, in fact and in law, by the defendant’s breach. Where there is uncertainty about the veracity or seriousness of a claim for mental injury, the Court concluded that a trier of fact is well placed to make a determination based on the application of these elements.
Importantly, while the Court did away with the requirement for a recognizable psychiatric illness, the Court did not remove other traditional hurdles to recovery of mental injury that fall under the rubric of the ordinary elements of negligence. A claimant will still need to show that mental injury in a person of ordinary fortitude was a reasonably foreseeable consequence of the defendant’s negligent conduct. In addition, to constitute mental injury, the mental disturbance must still rise to a certain level of seriousness before it will be actionable:
Further, and as Mustapha makes clear, mental injury is not proven by the existence of mere psychological upset. While, therefore, tort law protects persons from negligent interference with their mental health, there is no legal cognizable right to happiness. Claimant must, therefore, show much more – that the disturbance suffered by the claimant is “serious and prolonged and rise[s] above the ordinary annoyances, anxieties, and fears” that come with living in civil society (Mustapha, at para. 9).2
As noted in the introduction, the largest implication of this decision is that there is now one fewer hurdle to prove a claim for mental injury, and such claims can no longer be dismissed out of hand because the plaintiff has failed to plead a recognizable psychiatric illness. The questions that now must be asked are whether the alleged mental suffering was: (1) reasonably foreseeable; and (2) was sufficiently serious and prolonged such that it constitutes mental injury.
In addition, as was the case in Saadati, a plaintiff can now succeed on a mental injury claim without the help of expert evidence. That said, the usefulness of expert evidence should not be discounted. As noted by the Court, expert evidence can still serve a useful role in establishing or rebutting a claim for mental injury.
12007 SCC 28.
2Ibid. at para. 37.