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Personal Injury

Supreme Court decision reduces mental illness stigma

A Supreme Court of Canada ruling on the availability of damages for psychological injuries will help reduce the stigma associated with mental illness, says Toronto personal injury lawyer Jessica B. Mahabir.

In the case, the nation’s top court ruled in favour of 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’s an important decision in terms of the stigma that arises around mental illness in this country. You don’t have to show a recognized diagnosis for physical injuries, so why should you have to for psychological ones,” Mahabir, a lawyer with Derfel Injury Lawyers, tells

“Attitudes are changing when it comes to these issues, and although it’s not really the court’s job to do away with entrenched societal biases, it’s great to see a decision that reflects that.”

Mahabir says plaintiffs claiming mental injuries have historically exposed themselves to allegations of malingering.

“Insurance adjusters and defence experts will often say they’re making it up or making it sound worse than it is,” she says.

But this decision may reduce the emphasis on expert evidence in personal injury cases, she adds.  

“It’s important for the insurance industry to remember that expert opinions are not all that matter. They can be helpful, but it’s up to the judge or jury to make the ultimate decision about the credibility of the plaintiff,” Mahabir says.

The B.C. 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. While the defendant admitted liability for the accident, he disputed the issue of damages.

The complexity of the case was compounded in 2010 when a litigation guardian took over the plaintiff’s file because he 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 plaintiff had suffered no physical injuries as a result of the crash.

However, the judge determined he had suffered psychological injuries and awarded him $100,000 in non-pecuniary damages. The judge acted on the basis of testimony from friends and family who reported that the previously funny and energetic plaintiff had become sullen and prone to mood swings since the accident.

That ruling was overturned when the B.C. Court of Appeal 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,” he added. 

The decision also looks at the history of the Diagnostic and Statistical Manual of Mental Disorders, sometimes known as the Psychiatrists’ Bible, noting that homosexuality was once listed in its pages, and says courts should be wary of outsourcing legal questions about the availability of recovery for damages.

“This is not a static guide that can replace legal findings. It’s a book written by professionals who don’t all agree with one another,” Mahabir says. “It’s a helpful tool, but in the same way as an expert opinion, it’s not the be-all and end-all.”

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