The Supreme Court of Canada has coined the phrase “mental injury” in a sweeping decision abolishing misguided prejudices over “psychological”, “emotional” or “psychiatric” injury claims in the law of tort. The requirement that an injury claimant suffer a medically recognized psychiatric or psychological illness or condition, as a bar to recover, has been eliminated. The ICBC injury claimant’s award of $100,000 for mental injury has been restored (Saadati v. Moorhead,2017 SCC 28).
The Insurance Corporation of British Columbia, ICBC, was leading the march against recognizing mental injury claims. ICBC was the insurer behind this brutal appeal of the original modest award of $100,000 for mental injury (see my review of the Court of Appeal decision Saadati v. Moorhead,2015 BCCA 393).
In this Supreme Court of Canada case the claimant provided a written statement to an Insurance Corporation of British Columbia (“ICBC”) about the car accident. ICBC was aware of this claimant’s mental injury and refused to compensate him for over 10 years. The unanimous conclusion of the Supreme Court of Canada was that, “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.”(Saadati v. Moorhead,2017 SCC 28 at para 44).
Our highest court has also clarified that in mental injury claims, it is generally sufficient that the pleadings allege some form of such injury. Therefore broad heads of damage alleged in pleadings combined with oral and written submissions provide procedural fairness.
Now that ICBC has been told by Canada’s highest court it is no longer acceptable to deny mental injury claims on the grounds that there is no diagnosed psychiatric condition, personal injury lawyers will be reviewing the viability of bad faith claims on many denied claims and filing lawsuits unless changes are made by ICBC.
The Insurance Corporation of British Columbia, ICBC, Insurance Bureau of Canada and other Insurers are now scrambling to revisit internal policies for assessing mental injury claims.
Expect a backlash from the BC court as some judges may move to restrict the analysis of “cause in fact” for mental injury claims, maintaining the historical bias against these claims. ICBC and other insurance companies will also focus on Mustapha as it relates to the test of legal causation being foreseeable mental harm in a person of ordinary fortitude. Pre-existing emotional susceptibility and vulnerability to mental injury are principles that still need development.
The term “mental injury” is new to British Columbia as only one BC Court of Appeal case has used this term. In Plesner v. BC Hydro et al 2009 BCCA 188 the term was used in relation to a workers compensation claim, WCB, in finding discrimination based on mental injury violates the Canadian Charter of Rights and Freedoms. Other cases have used the term “mental injury” only in relation to the 2009 case Mustapha v. Culligan of Canada Ltd., 2008 SCC 27.
Follow our blog for much more commercial free analysis of this ground breaking personal injury case. To learn more about how judges make decisions in personal injury cases watch our short video:
Posted by Vancouver Personal Injury Lawyer Mr. Renn A. Holness, B.A LL.B. 1994. Called to BC Bar 1995.