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Erik MagrakenThis Blog is authored by British Columbia ICBC injury claims lawyer Erik Magraken. Erik is a partner with the British Columbia personal injury law-firm MacIsaac & Company. He restricts his practice exclusively to plaintiff-only personal injury claims with a particular emphasis on ICBC injury claims involving orthopaedic injuries and complex soft tissue injuries. Please visit often for the latest developments in matters concerning BC personal injury claims and ICBC claims

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Posts Tagged ‘Saadati v. Moorhead’

Supreme Court of Canada – Mental Injury Compensable Without “Recognized Psychiatric Condition”

June 2nd, 2017

Important reasons for judgement were published today by the Supreme Court of Canada discussing the legal threshold in lawsuits seeking damages for mental injuries caused by the negligence of others.

In today’s case (Saadati v. Moorhead)  the Plaintiff was involved in a collision and sued for damages alleging brain injury.  The trial judge rejected this claim but found that the Plaintiff “was a “changed man” after the accident” and awarded $100,000 in non-pecuniary damages for a psychological injury.  The BC Court of Appeal overturned the judgement and dismissed the claim finding the test of proving “a recognizable psychiatric (or psychological) condition” was not met.

The Supreme Court of Canada reinstated the trial award noting the Court of Appeal was in error and that a recognized psychiatric condition is not a pre-requisite to compensation for mental injury.  In reaching this conclusion Canada’s highest court provided the following reasons addressing compensable mental injury in negligence litigation:

[35]                          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.”

[36]                          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.

[37]                          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).

[38]                          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.


BC Court of Appeal Addresses Threshold in Proving Psychological Injury Claim

September 23rd, 2015

Update June 2, 2017 – The below decision was overturned today by the Supreme Court of Canada 

Reasons for judgement were released today by the BC Court of Appeal confirming the threshold that has to be met to successfully prove a psychological injury claim.

In today’s case (Saadati v. Moorhead) the Plaintiff was involved in a collisions and sued for damages alleging brain injury.  The trial judge rejected this claim but found that the Plaintiff “was a “changed man” after the accident” and awarded $100,000 in non-pecuniary damages for a psychological injury.  The BC Court of Appeal overturned the judgement and dismissed the claim finding the test of proving “a recognizable psychiatric (or psychological) condition” was not met.

In reaching this finding the BC Court of Appeal provided the following reasons:

[28]        I do not accept Mr. Saadati’s argument that the above quoted passage brought about a change in the law.  I agree with the decision in Healy, wherein Mr. Justice Sharpe, writing for a five-member panel of the Court of Appeal for Ontario, held that Mustapha did not remove the requirement that a plaintiff prove a recognizable psychiatric (or psychological) condition:  paras. 39-63.  As discussed in that decision, this requirement is also the law in the United Kingdom, Australia, and New Zealand.  I also agree with the reasoning on this point in the judgment of Mr. Justice Joyce in Kotai:  paras. 64-69.

[29]        In the alternative, Mr. Saadati submits there was medical evidence at trial to support a finding he suffers from a recognizable psychiatric condition.  In that regard, he states in para. 67 of his factum:

[T]here was clearly expert evidence before the court.  While that evidence may have had limited weight due to the inadmissibility of evidence relied on by Dr. Mok, it was still before the court.  It is submitted that even under the strictest version of the test proposed, Mr. Justice Funt was permitted to find compensable psychological harm.

Dr. Hiram Mok is a psychiatrist who prepared an expert report tendered by Mr. Saadati.  That report was based on an evaluation of Mr. Saadati which took place in the summer of 2010, more than a year after the fifth accident.

[30]        The difficulty with this argument is that the trial judge, who had before him both Dr. Mok’s report and his viva voce testimony, was not satisfied Mr. Saadati had proven he suffers from a recognized medical condition.  Given, as Mr. Saadati concedes, Mr. Mok’s evidence was of “limited weight”, it is not for this Court to make a finding based on that evidence that the trial judge was not prepared to make.

[31]        In the further alternative, Mr. Saadati submits, based on para. 41 of Odhavji Estates, that even if he did not prove he suffers from a “recognizable … psychopathological harm”, he is nonetheless entitled to damages on the basis that he proved he suffers from a “visible and provable illness”.  He says that “illness” was visible to his family and friends and that a medical diagnosis is not required.  I disagree.

[32]        In my view, it is apparent from how those expressions are used in the cases cited in para. 41 of Odhavji Estates—Guay v. Sun Publishing Company, [1953] 2 S.C.R. 216 at 238, and Frame v. Smith, [1987] 2 S.C.R. 99 at 127-129—that both connote a medically recognized condition that affects a person’s health or well-being.  Absent expert medical opinion evidence, a judge is not qualified to say what is, or is not, an illness.

[33]        For the above reasons, I am of the view Mr. Saadati did not prove an entitlement to compensation arising out of the second accident.


The Evidentiary Value of Past Tax Returns In Undeclared Income Claims

July 23rd, 2014

Although damages for past loss of income can be assessed even if a Plaintiff does not accurately report income to Revenue Canada, the figures reported on tax filings have a high evidentiary value in Court.  This was demonstrated in reasons for judgement released this week by the BC Supreme Court, Vancouver Registry.

In this week’s case (Saadati v. Moorhead) the Plaintiff was involved in a number of collisions.  The Plaintiff worked as a truck driver and advanced a claim for lost income of $6,000 per month for a period of two years.  Prior to trial the Plaintiff  was declared mentally incompetent and could not testify on his own behalf.   The Court was presented with evidence addressing the Plaintiff’s claim for past loss of income, most notably evidence of very low reported earnings in the years prior to the collision.  The Court relied heavily on this, accepting the reported earnings as accurate, and dismissed the Plaintiff’s claim for past loss of income.  In reaching this decision Mr. Justice Funt provided the following reasons:

[74]         It is also clear that the plaintiff earned very little income during his 2001 to 2004 taxation years. The plaintiff did not report any income for his 2001, 2002 and 2003 taxation years and for 2004 only $12,796 in taxable capital gains was reported. In sum, his tax returns for the years prior to the accident show very little income. I note that in 2007 the plaintiff reported $22,500 in employment income.

[75]         There was evidence that the plaintiff during the years prior to the July 5, 2005 accident did not appear to be in financial difficulties and was able to provide for his wife and two sons. The Court will not impute income to the plaintiff for these years. He filed tax returns which he would have certified to be correct (the Income Tax Act, RSC, 1985, c. 1(5th supp.) also provides significant penalties for a false tax return). As many people do, he may have kept his financial affairs to himself. The imputation of income would be tantamount to finding possibly gross negligence or tax evasion which is unwarranted, especially having regard to the fact that the plaintiff is not able to testify to explain matters and defend his reputation.

[76]         In Hoy v. Williams, 2014 BCSC 234, Justice Kent set forth the test to determine whether an award for past income loss should be made.

[141]    Compensation for past loss of earning capacity is to be based on what the plaintiff would have, not could have, earned but for the injury that was sustained: Rowe v. Bobell Express Ltd., 2005 BCCA 141 at para. 30; M.B. v. British Columbia, 2003 SCC 53 at para. 49. The burden of proof of actual past events is a balance of probabilities. An assessment of loss of both past and future earning capacity involves consideration of hypothetical events. The plaintiff is not required to prove these hypothetical events on a balance of probabilities. The future or hypothetical possibility will be taken into consideration as long as it is a real and substantial possibility and not mere speculation: Athey v. Leonati at para. 27; Morlan v. Barrett, 2012 BCCA 66 at para. 38.

[77]         As stated previously, I have found that the July 5, 2005 accident did not aggravate the plaintiff’s pre-existing physical injuries but that it did cause a personality change and cognitive difficulties.

[78]         The plaintiff has not provided sufficient evidence that “by reason of his [psychological] injuries, [he was] unable to do many things that, but for his injuries, he could have done to earn income” (Rowe v. Bobell Express Ltd., 2005 BCCA 141, at para. 34) or would have earned income.

[79]         The Court, therefore, dismisses the plaintiff’s claim for an award for past wage loss.