The anticipated judgment from the Supreme Court of Canada in Saadati v. Moorhead has been rendered today: June 2, 2017.
This decision analyzes the issue of whether a psychological injury is compensable without expert evidence or without proof of a recognized psychiatric illness.
The Plaintiff was successful at trial in recovering $100,000 for non-pecuniary damages for mental injury based on the testimony of lay witnesses. The Court of Appeal overturned this decision. Leave to appeal was sought to the SCC and the highest court concluded that Mr. Saadati’s family and friends had established a psychological injury.
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Torts — Negligence — Personal injury — Damages — Applicant claiming non-pecuniary damages for psychological injury arising out of motor vehicle accident — Applicant unable to prove recognized psychological or psychiatric condition — Did the Court of Appeal err in ruling that trial judges have no discretion whatsoever to award damages for psychological injuries in the absence of a specific medical diagnosis of what the psychological injury is, even if the trial judge finds as fact from testimonial evidence that a plaintiff has suffered a recognizable psychological injury as a result of the negligence of a defendant? — In circumstances where a plaintiff becomes incompetent during litigation and cannot testify at his personal injury trial, which removes the factual basis of a psychiatric report in evidence which diagnoses a psychological injury, can a trial judge then rely on testimonial evidence of friends and family alone award compensation for the psychological injury?
Between 2003 and 2009, Mr. Saadati was involved in five motor vehicle accidents, sustaining various injuries. He was declared mentally incompetent in 2010. This litigation arises out of the second accident on July 5, 2005, whereby Mr. Saadati’s tractor-truck was hit by a Hummer driven by the respondent Mr. Moorhead. Mr. Saadati’s vehicle sustained damage. Mr. Saadati started this action after the third accident. He sought non-pecuniary damages and past wage loss. The respondents admitted liability for the accident, but opposed the claim for damages.
The evidence at trial focused on the injuries suffered in the second accident and the effect that the third accident had on those injuries. Mr. Saadati was unavailable to testify at trial. The trial judge rejected Mr. Saadati’s claim for a physical injury arising from the accident. The trial judge also found that Mr. Saadati had not established a psychological injury, based on the evidence of his expert psychiatrist. The trial judge, however, found that the testimony of Mr. Saadati’s family and friends had established a psychological injury.
The SCC decision:
In short, no cogent basis has been offered to this Court for erecting distinct rules which operate to preclude liability in cases of mental injury, but not in cases of physical injury. Indeed, there is good reason to recognize the law of negligence as already according each of these different forms of personal injury — mental and physical — identical treatment. As the Court observed in Mustapha (at para. 8), the distinction between physical and mental injury is “elusive and arguably artificial in the context of tort”. Continuing (and citing Page v. Smith, at p. 188), the Court explained that, “[i]n an age when medical knowledge is expanding fast, and psychiatric knowledge with it, it would not be sensible to commit the law to a distinction between physical and psychiatric injury, which may . . . soon be altogether outmoded. Nothing will be gained by treating them as different ‘kinds’ of personal injury, so as to require the application of different tests in law” (emphasis in original; see also S. Deakin, A. Johnston and B. Markesinis, Markesinis and Deakin’s Tort Law (7th ed. 2013), at p. 124). This is entirely consistent with the Court’s longstanding view, expressed over a century ago, by Fitzpatrick C.J. in Toronto Railway, at pp. 269-70:
It would appear somewhat difficult to distinguish between the injury caused to the human frame by the impact and that resulting to the nervous system in consequence of the shock . . . . The nature of the mysterious relation which exists between the nervous system and the passive tissues of the human body has been the subject of much learned speculation, but I am not aware that the extent to which the one acts and reacts upon the other has yet been definitely ascertained. . . . I cannot find the line of demarcation between the damage resulting to the human [body] . . . and that which may flow from the disturbance of the nervous system . . . . The latter may well be the result of a derangement of the relation existing between the bones, the sinews, the arteries and the nerves. In any event the resultant effect is the same. The victim is incapacitated . . . .
Or, as Davies J. (as he then was) added in Toronto Railways (at p. 275), “[t]he nervous system is just as much a part of man’s physical being as the muscular or other parts”. In a similar vein, Lord Macmillan, in Bourhill v. Young (at p. 103), said “[t]he distinction between mental shock and bodily injury was never a scientific one, for mental shock is presumably in all cases the result of, or at least accompanied by, some physical disturbance in the sufferer’s system.”
 It follows that requiring claimants who allege one form of personal injury (mental) to prove that their condition meets the threshold of “recognizable psychiatric illness”, while not imposing a corresponding requirement upon claimants alleging another form of personal injury (physical) to show that their condition carries a certain classificatory label, is inconsistent with prior statements of this Court, among others. It accords unequal — that is, less — protection to victims of mental injury. And it does so for no principled reason (Beever, at p. 410). I would not endorse it.
 None of this is to suggest that mental injury is always as readily demonstrable as physical injury. While allegations of injury to muscular tissue may sometimes pose challenges to triers of fact, many physical conditions such as lacerations and broken bones are objectively verifiable. Mental injury, however, will often not be as readily apparent. 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 legally cognizable right to happiness. Claimants 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). To be clear, this does not denote distinct legal treatment of mental injury relative to physical injury; rather, it goes to the prior legal question of what constitutes “mental injury”. Ultimately, the claimant’s task in establishing a mental injury is to show the requisite degree of disturbance (although not, as the respondents say, to show its classification as a recognized psychiatric illness).
 Nor should any of this be taken as suggesting that expert evidence cannot assist in determining whether or not a mental injury has been shown. In assessing whether the claimant has succeeded, it will often be important to consider, for example, how seriously the claimant’s cognitive functions and participation in daily activities were impaired, the length of such impairment and the nature and effect of any treatment (Mulheron, at p. 109). To the extent that claimants do not adduce relevant expert evidence to assist triers of fact in applying these and any other relevant considerations, they run a risk of being found to have fallen short. As Thomas J. observed in van Soest (at para. 103), “[c]ourts can be informed by the expert opinion of modern medical knowledge”, “without needing to address the question whether the mental suffering is a recognisable psychiatric illness or not”. To be clear, however: while relevant expert evidence will often be helpful in determining whether the claimant has proven a mental injury, it is not required as a matter of law. Where a psychiatric diagnosis is unavailable, it remains open to a trier of fact to find on other evidence adduced by the claimant that he or she has proven on a balance of probabilities the occurrence of mental injury. And, of course, it also remains open to the defendant, in rebutting a claim, to call expert evidence establishing that the accident cannot have caused any mental injury, or at least any mental injury known to psychiatry. While, for the reasons I have given, the lack of a diagnosis cannot on its own be dispositive, it is something that the trier of fact can choose to weigh against evidence supporting the existence of a mental injury.
 The trial judge found that the accident caused the appellant to suffer “psychological injuries, including personality change and cognitive difficulties” (para. 50) such as slowed speech, leading to a deterioration of his close personal relationships with his family and friends. He remarked (at para. 65) that the appellant “was a changed man with his irritability likely reflecting a dark realization that he was not the man he once was”. These findings have not been challenged. And, as findings of fact, they are entitled to appellate deference, absent palpable and overriding error (Housen v. Nikolaisen, 2002 SCC 33,  2 S.C.R. 235, at para. 10).
 I see no legal error in the trial judge’s treatment of the evidence of the appellant’s symptoms as supporting a finding of mental injury. Those symptoms fit well within the Mustapha parameters of mental injury which I have already recounted. While there was no expert testimony associating them with a condition identified in the DSM or ICD, I reiterate that what matters is substance — meaning, those symptoms — and not the label. And, the evidence accepted by the trial judge clearly showed a serious and prolonged disruption that transcended ordinary emotional upset or distress.
- Conclusion and Disposition
 I would allow the appeal, with costs in this Court and in the courts below.
 The respondents seek to have the matter returned to the Court of Appeal for determination of their alternative grounds of appeal before that court — that the trial judge erred in finding that the mental injury caused by the accident was indivisible from any injury arising from the third accident; and that the damage award was excessive. I would, instead, restore the trial judge’s award.
 The (in)divisibility of two injuries is a question of fact (Bradley, at paras. 32 and 37). Here, the trial judge found that “the cause of the change to the plaintiff’s personality and his cognitive difficulties cannot be divided based on the events before and after September 17, 2005” (para. 58). That finding, which was open to him to make on this record, is entitled to deference. The respondents now argue that the Workers Compensation Act, R.S.B.C. 1996, c. 492, “serves to sever the case even in the context of an indivisible injury”, “because the [Act] creates a complete scheme and bars compensation” (transcript, at p. 82). This argument, based on an interpretation of s. 10 of the Workers Compensation Act, was made briefly in oral argument at trial (see R.R., vol. I, at pp. 253-54), but did not appear in their written submissions. While this argument appears to have found support in Pinch v. Hofstee, 2015 BCSC 1888, it was not dealt with by the trial judge in this case. For whatever reason, the respondents did not raise it at the Court of Appeal or in their factum filed at this Court. It was revived only in their oral submissions before us. Without endorsing or rejecting the reasoning in Pinch, I observe that, without full submissions and a pertinent lower court record, this is not an appropriate circumstance to decide the effect of workers’ compensation legislation on the divisibility of injuries.
 As to the quantum of the award, I note that both accidents at the root of this appeal occurred nearly 12 years ago, and that the litigation — in which the respondents have admitted liability — is now (as of this month) fully 10 years old. Further, the modest award in this case is not out of step with non-pecuniary damage awards from British Columbia courts for injuries causing personality changes and cognitive difficulties with similar consequences upon the plaintiff’s enjoyment of life (e.g. Zawadzki v. Calimoso, 2011 BCSC 45).
 The Court’s power to remand to a court of appeal is discretionary (Supreme Court Act, R.S.C. 1985, c. S-26, s. 46.1 ; Wells v. Newfoundland,  3 S.C.R. 199, at para. 68). The passage of time since the acknowledged wrong against Mr. Saadati and the commencement of these proceedings militates against remand. As in Wells, the damages assessed by the trial judge are reasonable, supported by the record, and fairly compensate the appellant’s loss. I conclude, therefore, that it would not “be just in the circumstances” (s. 46.1 ) to remand this matter to the Court of Appeal.
Appeal allowed with costs throughout.
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