BC Court of Appeal Addresses Threshold in Proving Psychological Injury Claim

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.