The Shift Towards Modern Proof in Mental Injury Cases

Denis Grigoras

Denis is a lawyer who draws on his background in complex legal disputes and transactions to problem-solve for his clients.

The Supreme Court of Canada’s decisions in Mustapha v. Culligan of Canada Ltd. and Saadati v. Moorhead have had a significant impact on how Canadian tort law addresses mental injury. The Supreme Court recognized, in the case of Mustapha, that a manufacturer owes a duty of care to a consumer and that a violation of this obligation might result in a personal harm that is compensable under the law. However, the Court also came to the conclusion that in order for a harm to be recovered, it must have been “legally caused” by the defendant and it cannot be “too remote.” This was done by applying the concepts of remoteness to the problem of determining culpability.

The Supreme Court’s decision in Saadati fundamentally altered the way in which tort law responds to mental injury by attempting to align it  more closely with the way it sponds to physical injuries. In this particular case, the Court upheld a trial judge’s award for Mr. Saadati’s mental injury, despite the absence of a diagnosis of a recognized psychiatric illness. The Court did so based on lay evidence of how Mr. Saadati’s personality had changed after being involved in a motor vehicle accident, as well as the impact this had on the relationships he had and his health. As a result of this ruling, a wider variety of mental injuries may now be recoverable in tort in Canada.

Equal Treatment for Physical and Mental Injuries in the Law

The Canadian Supreme Court has underlined that physical and mental injuries should be treated the same in tort law. In the case of Mustapha, Chief Justice McLachlin stated that the distinction between physical and mental injury is “elusive and arguably artificial” in the context of tort law. In the case of Saadati, Justice Brown stated that there is good reason to recognize the law of negligence as already treating both mental and physical injuries in the same way.  However, it is acknowledged that, due to historical prejudices and widespread skepticism, there may still be cases in which mental illnesses are treated in a manner that is distinct from how physical injuries are handled. Despite this, the Court’s endorsement of the equal treatment of mental and physical injuries in tort law is hoped to encourage courts and counsel to apply these principles consistently in practice.

Proving Mental Injury in the Post-Mustapha and Saadati Era

The decisions in Mustapha and Saadati have established that in order for a plaintiff to recover damages for mental injury under Canadian tort law, the injury must be a reasonably foreseeable result of the defendant’s negligence and must meet a basic threshold in order to be considered a compensable mental injury. In other words, the plaintiff must meet both of these requirements for the injury to be considered a compensable mental injury. This indicates that the injury must be serious, must last for an extended period of time, and must go beyond the typical emotional disturbances that are a natural and inevitable part of life. A mere emotional disturbance, stress, concern, or sadness, or other forms of discontent are not sufficient to produce a legally cognizable mental injury. Neither are other forms of dissatisfaction. In addition, the plaintiff must show that it was foreseeable that a person of ordinary fortitude would suffer serious injury as a result of the defendant’s actions. If the defendant knew that the plaintiff was of less than ordinary fortitude, the plaintiff’s injury may be considered reasonably foreseeable. Once it has been proven that damage may have been foreseeable to a person of ordinary fortitude, the defendant is required to take the plaintiff as he or she is and is accountable for the entire degree of the harm, even if it is greater than expected. This principle is commonly referred to as the thin skull rule.

Prior to the Mustapha case, those who had suffered mental injury as a result of their specific susceptibility (also known as “particular hypersensitivity”) were not entitled to liability for their injuries. In other words, if a person with normal mental fortitude would not ordinarily experience mental harm as a result of a given event, then an individual who is more sensitive and does suffer mental injury would not be able to collect damages even if they did suffer mental injury. This was demonstrated in the case White v. Chief Constable of South Yorkshire, in which some police officers were denied compensation for mental suffering caused by helping victims of a soccer disaster because they were expected to display “reasonable fortitude and robustness.” In other words, they were expected to be able to handle the stress that came with their jobs. In the case of Vanek v. Great Atlantic & Pacific Co. of Canada Ltd., the parents of an 11-year-old kid who drank contaminated grape nectar at school were similarly refused reimbursement for their emotional anguish. The youngster did not exhibit any worrying symptoms and went back to school the following day; nonetheless, the parents got concerned with the possible long-term consequences of the incident, and one of them ended up being hospitalized as a result. The court determined that there was no basis for liability in this case because the outcomes were not foreseeable, the parents were not present during the event, and the child made a complete recovery from their injuries.

The Mustapha case introduced a threshold for recovery of mental injury claims, requiring that the defendant could have reasonably foreseen the injury in a person of ordinary fortitude. This criterion has been regarded as applying the same minimum level of harm for mental injury claims as is used for physical injury claims. This is the case because claims for both types of injuries are being considered. To put it simply, the mental harm must be of a degree that is legally cognizable, in the same way, that a physical injury that would be compensable in a tort claim must be. On the other hand, there is a possibility that this threshold will be used in a manner that is distinct from that of mental and physical ailments, which would result in various treatments being administered. In actual practice, the threshold is intended to weed out claims of a lower level for which a remedy under tort law should not be provided. In the case of Mustapha, the plaintiff sustained a serious mental injury after seeing flies in water; however, the court ruled that a baseline level of mental injury was not foreseeable because the risk of harm was not clearly foreseeable or significant enough. This was due to the fact that the risk of harm was not significant enough or that it was not clearly foreseeable. However, the court also said that the threshold should not be utilized in order to unfairly deny legitimate claims and that each case should be assessed based on the facts that are specific to that instance.

In the past, Canadian plaintiffs who sought compensation for mental injury through a tort claim had to present evidence from a medical expert that they suffered from a diagnosable psychiatric condition in order to be awarded compensation. On the other hand, in the case of Saadati v. Moorhead, the Supreme Court of Canada brought the procedure for establishing mental injury into line with the procedure for proving physical injury, therefore modernizing and aligning the two methods. This means that in order to recover for mental injury, plaintiffs do not need to present a medical diagnosis of a psychiatric disorder as was previously necessary. Instead, the emphasis is placed on the signs and symptoms of the mental injury as well as the effects such symptoms have had on the plaintiff. It is possible for a claim for mental injury to be proven with just the testimony of lay witnesses, such as those from the plaintiff’s family, friends, and coworkers. Expert medical evidence can still be beneficial in such circumstances, as long as it related to the symptoms of the harm and their repercussions on the plaintiff, rather than the actual diagnosis of the sickness. Rather than erecting artificial hurdles to rehabilitation for mental injury, any issues about the legitimacy or credibility of a claim for mental injury should be addressed through the usual fact-finding process of trial.

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