Accounting for Law

Diagnosed illness not needed for mental injury damages

A Supreme Court of Canada judgment changes the conventional legal wisdom around the availability of damages for mental injuries, says Vancouver insurance lawyer Sean Lerner.

In the case, the nation’s top court sided with the plaintiff, a B.C. tractor-truck driver injured in a collision with another vehicle.

Granting his appeal, the Supreme Court restored a trial judge’s decision to award the man $100,000 in non-pecuniary damages, despite his failure to offer evidence of a medically recognized psychological illness.   

“It does represent a change in the law in B.C., where it was thought that a compensable mental injury could only be proved by having a doctor diagnose some recognized psychiatric condition,” Lerner, principal of Lerner Law Corporation, tells

Despite the judgment, Lerner says the best course of action for a plaintiff claiming damages for a psychological injury still involves retaining a medical expert to help prove their case.

“While expert evidence on the condition will always be important, if it is not available and there is other reliable evidence that shows a significant change in the person's mental health, that can be sufficient,” Lerner says. “Such evidence usually comes from the people surrounding the plaintiff.”

The case had its roots in a 2005 accident, after which the plaintiff sued the other driver for negligence, seeking damages for non-pecuniary loss and past income loss. Although the defendant admitted liability for the accident, he disputed the issue of damages.

The matter was complicated further in 2010 when a litigation guardian took over the file when the plaintiff was declared mentally incompetent to advance it following two further accidents.

Expert evidence supporting his injury claim was ruled inadmissible at trial, and the judge concluded the man had suffered no physical injuries as a result of the accident.

However, the judge determined he had suffered psychological injuries on the basis of testimony from friends and family who said the once funny and energetic plaintiff had become sullen and prone to mood swings, awarding him $100,000 in non-pecuniary damages.

That ruling was overturned when the B.C. Appeal Court ruled that damages can only be awarded for such injuries when they are demonstrated by “expert medical opinion evidence.”

But writing for the unanimous nine-judge Supreme Court panel, Justice Russell Brown said that the court has “never required claimants to show a recognizable psychiatric illness as a precondition to recovery for mental injury. Nor, in my view, would it be desirable for it to do so now.

"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. This and other mechanisms by which some courts have historically sought to control recovery for mental injury are, in my respectful view, premised upon dubious perceptions of psychiatry and of mental illness in general, which Canadian tort law should repudiate,” Brown added. 

While the law in B.C. has changed as a result, Lerner says the way these types of cases are made out will not be drastically affected.

“Plaintiffs asserting a mental injury still must show a ‘serious and prolonged’ disturbance that is beyond the ordinary anxieties and fears that come with being alive,” he says. “Someone in that position is still well advised to make use of expert evidence to prove their case along with any other evidence available.”

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