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Claims for Mental Injury Post Saadati v Moorhead

March 21, 2024

Recently, personal injury claims involving mental injury have been on the rise. Part of the reason for this is the 2017 Supreme Court of Canada (“SCC”) decision in Saadati v Moorhead, which defined the proof required in mental injury claims.

Prior to Saadati Courts often required claimants to lead Expert testimony confirming that the claimant suffered from a recognizable psychiatric illness. In Saadati , the SCC reiterated that the recoverability of damages related to a mental injury depended on a claimant satisfying the criteria applicable to any action in negligence, namely:

  • A duty of care;
  • A breach of the duty of care;
  • The claimant suffered damages; and
  • A legal and factual causal relationship between the breach and the damage

The SCC held that there is no basis to create a distinction between the proof required for physical injury and the proof required for mental injury. Therefore, it would be inconsistent to require claimants, who allege mental injury, to prove that their condition meets the threshold of recognizable psychiatric illness when there is no corresponding requirement upon claimants alleging physical injury.

Relying on their earlier decision in Mustapha v. Culliga n of Canada Ltd., the SCC held that mental injury is not proven by the existence of mere psychological upset. What is required to establish mental injury is a serious and prolonged disturbance that rises above ordinary annoyances, anxieties and fears that come with living in civil society. The SCC was clear that Expert evidence, although not required, could still assist in determining whether or not a mental injury has been shown.

Since the decision in Saadati , there have been several decisions considering mental injury. One such decision is the Ontario Court of Appeal decision Bothwell v. London Health Sciences Centre, which involved a medical patient who had been administered Heparin, a blood thinner, when he was to have been administered Voluven, a blood volumizer. The patient was himself a paramedic and aware of the potentially dangerous effects of the medical error. One component of the claim was the mental injury this inflicted on him, with effects such as nightmares, emotional distress, anxiety, and depression.

In Bothwell , the Court of Appeal held that Saadati provided clear direction in distinguishing mental injury from psychological upset. The trier of fact must consider the seriousness of any impairment by considering factors such as:

  • Impairment to cognitive functions;
  • Impairment to participation in daily life;
  • Disruption of employment;
  • Disruption of family life or social relationships;
  • Evidence that treatment was pursued to deal with the mental injury or its consequences; and
  • Evidence of a physical manifestation of the psychological upset.

Considering these factors, the Court concluded that the claimant’s distress was mere mental upset and did not rise to the level of mental injury.

In any file involving allegations of mental injury evidence relating to these factors will be crucial. Steps should be taken from the outset of the file to gather evidence related to these factors. Some steps, which can assist in assessing a claim for mental injury include:

  • Obtaining a statement from the claimant with specific questions relating to mental injury. For example, has the accident impacted mood? What symptoms did the claimant suffer from following the accident and have these improved? Is the claimant having issues with sleep, work, social relationships, etc.
  • Documentation is key. Request the complete files from the Family Physician, hospital records, (including those from Mental Health Services & Community Mental Health), Psychiatric consults/assessments, and any treatment records from Psychologists, Counsellors, etc. Employment and educational records may also be helpful.
  • Experts. As with physical injuries, an Expert qualified in the field at issue would assist in support of the defence theory. While not required, medical evidence is crucial. The nature of Experts and evaluations to consider include: Psychologists, Psychiatrists and Neuropsychological assessments. Each of these Experts holds a specific area of expertise and the choice of appropriate Expert will depend on the specific circumstances.

As set out in Saadati mere psychological upset is not sufficient to establish mental injury compensable at law. What is required is a serious and prolonged disturbance that rises above ordinary annoyances, anxieties and fears that come with living in civil society. It is important to consider evidence related to the factors outlined by the Ontario Court of Appeal in Bothwell. Like any file it will be critical to gather the necessary evidence through statements, documents and medical experts.

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