SCC Makes Promising Move Towards Destigmatizing Mental Harm, But Will Saadati Unleash the Spectre of Indeterminate Liability?
In its June decision, Saadati v Moorhead, 2017 SCC 28 [Saadati], the Supreme Court of Canada (“SCC”) made a ground-breaking decision on psychiatric injury, moving in a bold direction away from appellate jurisprudence and the path taken by courts in the United Kingdom, New Zealand, and Australia (para 28), in holding that medical evidence is not required to establish mental harm. With its recognition that psychiatric harm is deserving of equal treatment to physical harm, the SCC seems to be attempting to redress tort law’s long neglect for mental and emotional damage. By rejecting the necessity of medical evidence, Saadati is a striking departure from the Court’s constant concern over the “spectre of indeterminate liability,” which in the past has caused hesitation in opening up new avenues for recovery (see Cooper v Hobart, 2001 SCC 79). Mr. Saadati successfully established psychiatric injury through the testimony of friends and family, but will all future claims relying on such evidence convince a trier of fact that on a balance of probabilities a mental injury occurred?
Between 2003 and 2009, the plaintiff, Mr. Saadati, was involved in five motor vehicle accidents, the second of which was with the defendant, Mr. Moorhead, in July of 2005. Mr. Saadati experienced chronic pain and headaches as a result of his first accident, but the ambulance crew who attended to Mr. Saadati after the incident with Mr. Moorhead did not notice any physical injuries, observing only that he was emotionally shaken. The third accident occurred shortly afterwards in September 2005 and the final two in 2008 and 2009. The injuries from the accidents were so serious that Mr. Saadati was found to be mentally incompetent, and required a litigation guardian.
Trial: Saadati v Moorhead, 2013 BCSC 636
At the British Columbia Supreme Court, Mr. Saadati brought an action against Mr. Moorhead seeking compensation for loss of wages and non-pecuniary damages for physical and psychological injuries. At trial, doctors provided conflicting opinions as to whether Mr. Saadati had suffered a concussion as a result of Mr. Moorhead’s negligence. As a result, Justice Funt found that there was insufficient evidence to prove that Mr. Saadati had suffered any physical injuries from his accident involving Mr. Moorhead, or that any injuries prevented him from earing wages (paras 77-78). However, despite the fact that Mr. Saadati was not diagnosed with a concussion, Funt J., following the SCC’s direction in Clements v Clements, 2012 SCC 32 [Clements] that a “trial judge is to take a robust and pragmatic approach to determining if a plaintiff has established that the defendant’s negligence caused…loss. Scientific proof of causation is not required,” concluded that Mr. Saadati suffered psychological harm from the July 2005 accident and awarded $100,000 in non-pecuniary damages (paras 33, 50, 80).
Funt J. misinterpreted the Court’s holding in Clements that there is no need for scientific proof of causation to mean that scientific evidence is not needed at all. Funt J. thereby relied on the testimony of Mr. Saadati’s friends and family as evidence for psychological harm. The trial judge’s findings were based particularly on the testimony of Mr. Saadati’s niece and ex-wife, who declared that after the July 2005 incident he suffered from mood swings and was a “totally different person,” not “charming as before” nor the “active, happy, cheerful, outgoing, very nice” man he used to be (paras 45, 48). Funt J.’s “robust and pragmatic approach” found that there was a causal link, according to the Clements test, but seems insufficient for actually establishing that there was harm.
Appeal: Saadati v Moorhead, 2015 BCCA 393
Justice Frankel, writing for a unanimous British Columbia Court of Appeal, noted Funt J.’s incongruous use of Clements, which deals only with proof of causation, and overturned the trial decision. Justice Frankel agreed with the appellants that a plaintiff must provide proof of a medically recognized psychiatric or psychological illness or condition in order to receive damages (para 22). Frankel J.A. pointed to Justice Iacobucci’s decision in Odhavji Estate v Woodhouse, 2003 SCC 69, which states that a plaintiff may recover for psychiatric damages, if “the plaintiff suffers from a ‘visible and provable illness’ or or ‘recognizable physical or psychopathological harm’” (para 22). Also, in Young v Borzoni et al, 2007 BCCA 16, the court recognized “visible and provable illnesses” to be “recognizable psychiatric illness” such as those defined by the American Psychiatric Association’s Diagnostic and Statistical Manual of Mental Disorders (“DSM”) (para 24). The British Columbia Court of Appeal did not accept Mr. Saadati’s argument that Justice McLachlin’s decision in Mustapha v Culligan of Canada Ltd, 2008 SCC 27 [Mustapha] has changed the current state of the law for establishing a psychiatric injury. Although Mustapha has recognized that courts must treat psychological injury the same as physical injury in the application of legal tests, Frankel J.A. ultimately agreed with Justice Sharpe of the Ontario Court of Appeal who held in Healey v Lakeridge Health Corporation, 2011 ONCA 55, that Mustapha does not “remove the requirement that a plaintiff prove a recognizable psychiatric (or psychological) condition” (para 28). Finally, Frankel J.A. found that a trial judge is not qualified to determine “what is, or is not, an illness” without expert medical evidence (para 32).
The Supreme Court Decision
Justice Brown, writing for the Court, overturned the British Columbia Court of Appeal’s decision, restoring the trial judge’s award to the plaintiff. The Court rejected Frankel J.’s holding that expert medical evidence is a prerequisite to recovery for mental injury, arguing that the Court has never required “a recognizable psychiatric illness as a precondition to recovery for mental injury” (para 2). Following Mustapha, in which the Court observed that “the distinction between physical and mental injury is elusive and arguably artificial in the context of tort” (para 35), Justice Brown asserted that the process of determining compensable psychological injury must be the same as determining physical injury, stating:
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 (para 2, emphasis in original).
Rather than create another test for mental damages, Justice Brown insisted that the existing elements and tests of Canadian negligence jurisprudence (duty of care, standard of care, causation, etc.) provide “a sufficiently robust array of protections against unworthy claims” and “address concerns for indeterminate liability” (paras 2, 13, 19, 34). Moreover, the threshold for mental disturbances that legally qualify as “damage” to one’s mental security remains, as laid out in Mustapha: “serious and prolonged.” This threshold requirement rises “above the ordinary emotional disturbances that will occasionally afflict any member of civil society without violating his or her right to be free of negligently caused mental injury” (para 19). In fact, Mr. Mustapha failed to recover for mental harm, despite the Court’s recognition that he suffered harm which was factually caused by the defendant’s negligence (Mustapha at para 10). His claim failed because Mr. Mustapha already suffered from anxiety and nervous disorders, and the mental harm he suffered as a result of finding a dead fly in his water bottle was deemed too remote. Therefore, the Court found that the defendant did not legally cause Mr. Mustapha’s mental harm, though they acknowledged its existence. In Saadati, the Court emphasizes that this threshold is a matter of “degree of disturbance” but not one of classifying a recognizable psychiatric illness (para 37).
The Court held in Saadati that expert psychiatric witnesses should not replace the trier of fact in the “task of determining whether the claimant sustained mental injury” (para 27). Expert medical opinion is usually given with reference to the DSM, which provides diagnostic criteria and classifies recognized psychiatric disorders (para 30). However, the Court notes that the law is not concerned with diagnosing injuries, but only with symptoms and effects, and so “there is no necessary relationship between reasonably foreseeable mental injury and a diagnostic classification scheme.” Therefore, “the trier of fact’s inquiry should be directed to the level of harm that the claimant’s particular symptoms represent, not to whether a label could be attached to them” (para 31). Moreover, the Court questions the legal utility of the DSM, because its classifications are continually revised and it has included some controversial labels in the past. (for instance, the DSM recognized homosexuality as a psychiatric disorder until 1973) (para 32). Further, not all illnesses may be classified in the DSM, which has been late to recognize such conditions as post-traumatic stress disorder (it first appeared in the DSM in 1980) (para 33). The issues inherent in the DSM suggest that it is an unreliable legal source for assessing compensable harm.
Justice Brown concludes his analysis by stipulating that nothing in this judgement should be taken to mean that “expert evidence cannot assist in determining whether or not a mental injury has been shown” (para 38, emphasis added). For example, he notes the importance of assessing the impairment of a plaintiff’s cognitive functions or daily activities, and even suggests that without expert evidence to assist triers of facts in such assessments, a plaintiff risks failing to prove compensable harm. The Court also acknowledges that it is still open for a defendant to rebut a plaintiff’s claim with expert evidence establishing that the defendant’s negligence could not have caused mental injury. However, Justice Brown insists that, while expert medical evidence may be helpful, “it is not required as a matter of law,” and a trier of fact can rely on other evidence to determine whether a plaintiff “has proven on a balance of probabilities the occurrence of mental injury” (para 38). In applying his reasons to Mr. Saadati’s claim, the Court accepted Funt J.’s findings based solely on testimonial evidence of symptoms of mental injury (para 40).
Psychiatric Harm in Canadian Tort Law
With Saadati, the Court has taken a monumental and commendable step towards recognizing the seriousness of psychiatric harms by noting that Canadian tort law has been too beholden to “dubious perceptions of psychiatry and of mental illness in general” (para 2). Justice Brown outlines the history of psychiatric harm in Canadian negligence law, which was initially treated by the courts with “suspicion and sometimes outright hostility” as an “invisible” and “intangible” harm, or not a harm at all but simply “a product of the imagination” (para 14). Until fairly recently, damages for mental injury were only awarded in conjunction with physical injury (paras 14-15), and rarely compensated on the principle that the law does not concern itself with “trivial matters” (para 21). Justice Brown rightly condemns tort law’s role in perpetuating the stigma of mental illness, and acknowledges the devastating impacts of mental injury to a person’s life and well-being, noting that “loss of our mental health is a more fundamental violation of our sense of self than the loss of a finger” (para 23). This decision points to a new direction for Canadian courts, which will likely begin to treat mental harm as seriously as physical injury, and suggests that we will see more compensation for psychiatric injury in the future.
Although the Court’s long overdue consideration for mental illness is admirable, Justice Brown’s contention that mental harm, like physical harm, does not require proof of expert medical opinion may produce a lot of uncertainty for trial judges assessing future claims of psychiatric harm. I am in full agreement that courts should address mental and physical harm in the same manner, but surely medical evidence is relied on to establish physical injury, especially for internal injuries. Granted that expert medical opinion may not always be necessary, nevertheless courts will at least look at medical records of the physical injury or even prescriptions, just as Funt J. did in order to assess whether Mr. Saadati’s physical injuries were caused by his first or second automobile accident (paras 15, 32). Moreover, since Justice Brown insists that trial judges assess physical and mental injuries in the same manner, does this decision mean that plaintiffs can now rely solely on the testimony of friends and family to confirm their physical injury just as Mr. Saadati did for his psychiatric injury?
It is unclear from the judgement whether the Court has removed the requirement of any medical evidence to establish mental harm, or just the necessity of “a positive expert diagnosis” of a condition recognized in the DSM for compensation. Such a distinction would make sense given that medical consultation and treatment for mental illness may not always involve a psychiatric expert or diagnosis of a recognized condition. In fact, Justice Brown notes that expert medical opinion can inform a trier of fact without the need to address whether the mental injury is a recognizable psychiatric illness. However, this observation is followed by the assertion that, when there is no diagnosis, “it remains open to a trier of fact to find on other evidence adduced by the claimant” that he or she has suffered a mental injury (para 38). These statements, read within the broader context of the judgement as a whole and the Court’s upholding of the trial judge’s findings, suggest that indeed a plaintiff can establish mental harm without any medical evidence.
Although the Court’s efforts to understand mental illness are encouraging, I am skeptical of accepting only the testimony of friends and family, which could let loose the spectre of indeterminate liability. Such testimony may be difficult to refute, and the entire fate of compensation could perilously hang on the quality or likability of witnesses. Funt J. put a lot of stock in the testimony of Mr. Saadati’s niece, whom he found to be “a very accomplished person” and “a forthright, careful and candid witness” (paras 39, 42), but not all witnesses will be as agreeable in the eyes of a trier of fact. Moreover, since the Court has left it open for defendants to refute such testimony with expert medical opinion, it would be a great risk for the plaintiff to rely only on testimonial evidence.
The Court’s thoughtful treatment of psychiatric illness in Saadati is hopeful progress away from tort law’s negative and stigmatizing history. Many claims that may have failed in the past because mental illness was not viewed as a recoverable injury will now succeed because of the Court’s recognition that psychiatric injury can be just as debilitating as physical injury. However, the Court’s method of progress may introduce a lot of uncertainty to tort claims by opening wide the doors of acceptable evidence, yet providing little guidance on what would establish mental harm if not medical verification.