Saadati v. Moorhead

Saadati v. Moorhead
Collection
Supreme Court Judgments
Date
2017-06-02
Neutral citation
2017 SCC 28
Report
[2017] 1 SCR 543
Case number
36703
Judges
McLachlin, Beverley; Abella, Rosalie Silberman; Moldaver, Michael J.; Karakatsanis, Andromache; Wagner, Richard; Gascon, Clément; Côté, Suzanne; Brown, Russell; Rowe, Malcolm
On appeal from
British Columbia
Notes
SCC Case Information: 36703
Decision Content
SUPREME COURT OF CANADA
Citation: Saadati v. Moorhead, 2017 SCC 28, [2017] 1 S.C.R. 543
Appeal Heard: January 16, 2017
Judgment Rendered: June 2, 2017
Docket: 36703
Between:
Mohsen Saadati, by his Litigation Guardian, Sara Zarei
Appellant
and
Grant Iain Moorhead,
Able Leasing (2001) Ltd. and
Thi Hao Hoang
Respondents
- and -
Insurance Bureau of Canada
Intervener
Coram: McLachlin C.J. and Abella, Moldaver, Karakatsanis, Wagner, Gascon, Côté, Brown and Rowe JJ.
Reasons for Judgment:
(paras. 1 to 45)
Brown J. (McLachlin C.J. and Abella, Moldaver, Karakatsanis, Wagner, Gascon, Côté and Rowe JJ. concurring)
Saadati v. Moorhead, 2017 SCC 28, [2017] 1 S.C.R. 543
Mohsen Saadati, by his Litigation Guardian, Sara Zarei Appellant
v.
Grant Iain Moorhead,
Able Leasing (2001) Ltd. and
Thi Hao Hoang Respondents
and
Insurance Bureau of Canada Intervener
Indexed as: Saadati v. Moorhead
2017 SCC 28
File No.: 36703.
2017: January 16; 2017: June 2.
Present: McLachlin C.J. and Abella, Moldaver, Karakatsanis, Wagner, Gascon, Côté, Brown and Rowe JJ.
on appeal from the court of appeal for british columbia
Torts — Negligence — Motor vehicles — Mental injury — Damages — Claimant suing in negligence as result of motor vehicle accident — Trial judge awarding claimant damages for mental injury based on testimony of lay witnesses rather than on expert evidence establishing identified medical cause — What constitutes mental injury — Whether recovery for mental injury requires expert evidence or other proof of recognized psychiatric illness — Whether claimant sustained damage — Whether matter should be remanded to Court of Appeal.
S’s tractor‑truck was struck by a vehicle driven by M. This accident was the second in a series of five motor vehicle collisions involving S. S had suffered chronic pain since the first accident, which was later aggravated by the third accident. S sued M and the other defendants in negligence, seeking damages for non‑pecuniary loss and past income loss arising from the second accident. The trial judge found that the second accident caused S psychological injuries, including personality change and cognitive difficulties. This finding did not rest on an identified medical cause or expert evidence, but was based on the testimony of S’s friends and family to the effect that S’s personality had changed for the worse after the accident. The trial judge further found that the mental injury originally caused by the second accident was indivisible from any injury caused by the third accident and awarded S $100,000 for non‑pecuniary damages. The Court of Appeal allowed the appeal on the ground that S had not demonstrated by expert evidence a medically recognized psychiatric or psychological injury. It also observed that the trial judge had erred by deciding the case on a basis neither pleaded nor argued by S.
Held: The appeal should be allowed and the trial judge’s award restored.
The trial judge’s award for mental injury was not made in breach of procedural fairness. While cases should not be decided on grounds not raised, in claims for negligently caused mental injury, it is generally sufficient that the pleadings allege some form of such injury. The many allegations of mental injury in S’s oral and written closing submissions, combined with the broad heads of damage alleged in the pleadings, provided ample notice to the defendants of the case which they had to answer, and they did not object to these allegations.
Recovery for mental injury in negligence law depends upon the claimant satisfying the criteria applicable to any successful action in negligence: a duty of care, a breach, damage, and a legal and factual causal relationship between the breach and the damage. Canadian negligence law recognizes that a duty exists at common law to take reasonable care to avoid causing foreseeable mental injury, and that this cause of action protects a right to be free from negligent interference with one’s mental health. The ordinary duty of care analysis is therefore to be applied to claims for negligently caused mental injury. In particular, liability for mental injury must be confined to claims which satisfy the proximity analysis within the duty of care framework and the remoteness inquiry.
A finding of legally compensable mental injury need not rest, in whole or in part, on the claimant proving a recognized psychiatric injury. The law of negligence accords identical treatment to mental and physical injury. Requiring claimants who allege mental injury to prove that their condition meets the threshold of recognizable psychiatric illness, while not imposing a corresponding requirement upon claimants alleging physical injury to show that their condition carries a certain classificatory label, would accord unequal protection to victims of mental injury. Distinct rules which operate to preclude liability in cases of mental injury, but not in cases of physical injury, should not be erected. The elements of the cause of action of negligence, together with the threshold stated in Mustapha v. Culligan of Canada Ltd., 2008 SCC 27, [2008] 2 S.C.R. 114, for proving mental injury, furnish a sufficiently robust array of protections against unworthy claims.
Furthermore, confining compensable mental injury to conditions that are identifiable with reference to psychiatric diagnostic tools is inherently suspect as a matter of legal methodology. While, for treatment purposes, an accurate diagnosis is obviously important, a trier of fact adjudicating a claim of mental injury is not concerned with diagnosis, but with symptoms and their effects. There is no necessary relationship between reasonably foreseeable mental injury and a diagnostic classification scheme. A negligent defendant need only be shown to have foreseen injury, and not a particular psychiatric illness that comes with its own label. The trier of fact’s inquiry should be directed to the level of harm that the claimant’s particular symptoms represent, not to whether a label could be attached to them.
To establish mental injury, claimants must show that the disturbance is serious and prolonged and rises above the ordinary annoyances, anxieties and fears that come with living in civil society. Expert evidence can assist in determining whether or not a mental injury has been shown, but 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. 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.
In the instant case, the trial judge accepted evidence that clearly showed a serious and prolonged disruption that transcended ordinary emotional upset or distress. These findings have not been challenged and are entitled to appellate deference. There is no legal error in the trial judge’s treatment of the evidence of S’s symptoms as supporting a finding of mental injury, even in the absence of expert testimony associating them with an identified condition.
It would not be just in the circumstances to remand this matter to the Court of Appeal on the questions of indivisible injury and the damage award. The indivisibility of two injuries is a finding of fact, which is entitled to deference. In addition, without full submissions and a pertinent lower court record, this is not an appropriate case to decide the effect of workers’ compensation legislation on the divisibility of injuries. Similarly, the trial judge’s damage award is reasonable, supported by the record, and fairly compensates S’s loss. It should therefore be restored.
Cases Cited
Applied: Mustapha v. Culligan of Canada Ltd., 2008 SCC 27, [2008] 2 S.C.R. 114, aff’g (2006), 84 O.R. (3d) 457; referred to: Clements v. Clements, 2012 SCC 32, [2012] 2 S.C.R. 181; Bradley v. Groves, 2010 BCCA 361, 326 D.L.R. (4th) 732; Insurance Corp. of British Columbia v. Patko, 2008 BCCA 65, 290 D.L.R. (4th) 687; Rodaro v. Royal Bank of Canada (2002), 59 O.R. (3d) 74; Burgsteden v. Long, 2014 SKCA 115, 378 D.L.R. (4th) 562; R. v. E.M.W., 2011 SCC 31, [2011] 2 S.C.R. 542; Canada Trustco Mortgage Co. v. Renard, 2008 BCCA 343, 298 D.L.R. (4th) 216; Odhavji Estate v. Woodhouse, 2003 SCC 69, [2003] 3 S.C.R. 263; McLoughlin v. O’Brian, [1983] 1 A.C. 410; Miner v. Canadian Pacific Railway Co. (1911), 18 W.L.R. 476; Dulieu v. White & Sons, [1901] 2 K.B. 669; Hambrook v. Stokes Brothers, [1925] 1 K.B. 141; Horne v. New Glasgow, [1954] 1 D.L.R. 832; Alcock v. Chief Constable of South Yorkshire Police, [1992] 1 A.C. 310; Page v. Smith, [1996] 1 A.C. 155; White v. Chief Constable of South Yorkshire Police, [1999] 2 A.C. 455; Tame v. New South Wales, [2002] HCA 35, 211 C.L.R. 317; Beecham v. Hughes (1988), 27 B.C.L.R. (2d) 1; Rhodes v. Canadian National Railway (1990), 75 D.L.R. (4th) 248; Toronto Railway Co. v. Toms (1911), 44 S.C.R. 268; Bourhill v. Young, [1943] A.C. 92; Cooper v. Hobart, 2001 SCC 79, [2001] 3 S.C.R. 537; Donoghue v. Stevenson, [1932] A.C. 562; Hinz v. Berry, [1970] 2 Q.B. 40; McDermott v. Ramadanovic Estate (1988), 27 B.C.L.R. (2d) 45; Cox v. Fleming (1995), 15 B.C.L.R. (3d) 201; Mason v. Westside Cemeteries Ltd. (1996), 135 D.L.R. (4th) 361; Flett v. Maxwell, [1996] B.C.J. No. 1455 (QL); Vanek v. Great Atlantic & Pacific Co. of Canada (1999), 48 O.R. (3d) 228; Healey v. Lakeridge Health Corp., 2011 ONCA 55, 103 O.R. (3d) 401; Frazer v. Haukioja, 2010 ONCA 249, 101 O.R. (3d) 528; Kotai v. “Queen of the North” (The), 2009 BCSC 1405, 70 C.C.L.T. (3d) 221; Young v. Borzoni, 2007 BCCA 16, 277 D.L.R. (4th) 685; Graham v. MacMillan, 2003 BCCA 90, 15 C.C.L.T. (3d) 155; Koerfer v. Davies, [1994] O.J. No. 1408 (QL); Duwyn v. Kaprielian (1978), 22 O.R. (2d) 736; van Soest v. Residual Health Management Unit, [1999] NZCA 206, [2000] 1 N.Z.L.R. 179; Sutherland v. Hatton, [2002] EWCA Civ 76, [2002] 2 All E.R. 1; Augustus v. Gosset, [1996] 3 S.C.R. 268; Housen v. Nikolaisen, 2002 SCC 33, [2002] 2 S.C.R. 235; Pinch v. Hofstee, 2015 BCSC 1888; Zawadzki v. Calimoso, 2011 BCSC 45; Wells v. Newfoundland, [1999] 3 S.C.R. 199.
Statutes and Regulations Cited
Civil Code of Québec, art. 1457.
Supreme Court Act, R.S.C. 1985, c. S‑26, s. 46.1 .
Workers Compensation Act, R.S.B.C. 1996, c. 492, s. 10.
Authors Cited
American Psychiatric Association. Diagnostic and Statistical Manual of Mental Disorders, 5th ed. Arlington, Va.: American Psychiatric Association, 2013.
Beever, Allan. Rediscovering the Law of Negligence. Oxford: Hart, 2007.
Bélanger‑Hardy, Louise. “Reconsidering the ‘Recognizable Psychiatric Illness’ Requirement in Canadian Negligence Law” (2013), 38 Queen’s L.J. 583.
Bélanger‑Hardy, Louise. “Thresholds of Actionable Mental Harm in Negligence: A Policy‑Based Analysis” (2013), 36 Dal. L.J. 103.
Bryant, Richard A. “Grief as a psychiatric disorder” (2012), 201 Brit. J. Psychiatry 9.
Cochran, Susan D., et al. “Proposed declassification of disease categories related to sexual orientation in the International Statistical Classification of Diseases and Related Health Problems (ICD‑11)” (2014), 92 Bull. World Health Organ. 672.
Drescher, Jack. “Out of DSM: Depathologizing Homosexuality” (2015), 5 Behav. Sci. 565.
Fridman, G. H. L. The Law of Torts in Canada, 3rd ed. by G. H. L. Fridman et al. Toronto: Carswell, 2010.
Gray, John E., Margaret Shone and Peter F. Liddle. Canadian Mental Health Law and Policy, 2nd ed. Markham, Ont.: LexisNexis, 2008.
Jones, Michael A. “Liability for Psychiatric Damage: Searching for a Path between Pragmatism and Principle”, in Jason W. Neyers, Erika Chamberlain and Stephen G. A. Pitel, eds., Emerging Issues in Tort Law. Oxford: Hart, 2007, 113.
Klar, Lewis N. Tort Law, 5th ed. Toronto: Carswell, 2012.
Linden, Allen M., and Bruce Feldthusen. Canadian Tort Law, 10th ed. Toronto: LexisNexis, 2015.
Markesinis and Deakin’s Tort Law, 7th ed. by Simon Deakin, Angus Johnston and Basil Markesinis. Oxford: Clarendon Press, 2013.
Mulheron, Rachael. “Rewriting the Requirement for a ‘Recognized Psychiatric Injury’ in Negligence Claims” (2012), 32 Oxford J. Leg. Stud. 77.
Mullany, Nicholas J., and Peter R. Handford. Tort Liability for Psychiatric Damage. Sydney, N.S.W.: Law Book Co., 1993.
Ripstein, Arthur. Private Wrongs. Cambridge, Mass.: Harvard University Press, 2016.
Stapleton, Jane. “In Restraint of Tort”, in Peter Birks, ed., The Frontiers of Liability, vol. 2. New York: Oxford University Press, 1994, 83.
Stevens, Robert. Torts and Rights. Oxford: Oxford University Press, 2007.
Teff, Harvey. Causing Psychiatric and Emotional Harm: Reshaping the Boundaries of Legal Liability. Oxford: Hart, 2009.
Todd, Stephen, et al. The Law of Torts in New Zealand, 5th ed. Wellington, N.Z.: Brookers, 2009.
World Health Organization. International Statistical Classification of Diseases and Related Health Problems, 10th rev. Geneva: W.H.O., 1992.
APPEAL from a judgment of the British Columbia Court of Appeal (Saunders, Chiasson and Frankel JJ.A.), 2015 BCCA 393, 81 B.C.L.R. (5th) 1, 377 B.C.A.C. 106, 648 W.A.C. 106, 23 C.C.L.T. (4th) 177, 390 D.L.R. (4th) 63, [2016] 4 W.W.R. 259, [2015] B.C.J. No. 2027 (QL), 2015 CarswellBC 2694 (WL Can.), setting aside a decision of Funt J., 2014 BCSC 1365, [2014] B.C.J. No. 1898 (QL), 2014 CarswellBC 2133 (WL Can.). Appeal allowed.
Dairn Shane and Joseph Fearon, for the appellant.
Kathleen S. Duffield and Steven W. Lesiuk, for the respondents.
Alan D’Silva and Aaron Kreaden, for the intervener.
The judgment of the Court was delivered by
Brown J. —
I. Introduction
[1] This appeal, which arises from a motor vehicle accident in British Columbia, concerns principally the application of the common law of negligence to claims for mental injury.[1] A trial judge awarded damages for mental injury to the appellant, Mohsen Saadati, on the strength not of expert evidence, but of the testimony of lay witnesses to the effect that, after the appellant’s involvement in an automobile accident caused by the respondents, his personality had changed. The British Columbia Court of Appeal reversed, holding that recovery for mental injury requires a claimant to prove, with expert medical opinion evidence, a “recognizable [or recognized] psychiatric illness”.
[2] This Court has, however, never required claimants to show a recognizable psychiatric illness as a precondition to recovery for mental injury. Nor, in my view, would it be desirable for it to do so now. Just as recovery for physical injury is not, as a matter of law, conditioned upon a claimant adducing expert diagnostic evidence in support, recovery for mental injury does not require proof of a recognizable psychiatric illness. This and other mechanisms by which some courts have historically sought to control recovery for mental injury are, in my respectful view, premised upon dubious perceptions of psychiatry and of mental illness in general, which Canadian tort law should repudiate. Further, the elements of the cause of action of negligence, together with the threshold stated by this Court in Mustapha v. Culligan of Canada Ltd., 2008 SCC 27, [2008] 2 S.C.R. 114, at para. 9, for proving mental injury, furnish a sufficiently robust array of protections against unworthy claims. I therefore conclude that a finding of legally compensable mental injury need not rest, in whole or in part, on the claimant proving a recognized psychiatric illness. It follows that I would allow the appeal and restore the trial judge’s award.
II. Overview of Facts and Proceedings
A. Background
[3] On the night of July 5, 2005, the appellant was driving a tractor-truck along Front Street in New Westminster, British Columbia, when his vehicle was struck by a vehicle driven by the respondent Grant Iain Moorhead. The appellant’s truck sustained significant damage, but he appeared at the time to have been uninjured. He went to a nearby hospital, but was not admitted for observation.
[4] This accident (“accident”) was the second in a series of five motor vehicle collisions involving the appellant between January 2003 and March 2009, inclusive. The appellant had suffered chronic pain since the first accident, which was later aggravated by the third accident (which occurred on September 17, 2005). In 2007, the appellant sued the respondents in negligence, seeking damages for non-pecuniary loss and past income loss. Two further accidents followed in 2008 and 2009. In 2010, the appellant was declared mentally incompetent and his action was continued by a litigation guardian.
B. Judicial History
(1) Supreme Court of British Columbia — 2014 BCSC 1365
[5] The respondents collectively admitted liability for the accident, but took the position that the appellant suffered no damage. Expert evidence was tendered on behalf of the appellant to support his claim of an injury resulting from the accident, much of which the trial judge ruled inadmissible (2013 BCSC 636, 46 B.C.L.R. (5th) 392). After weighing the admissible evidence, he concluded that the appellant had not demonstrated any physical injury resulting from the accident. Citing the test for factual causation stated in Clements v. Clements, 2012 SCC 32, [2012] 2 S.C.R. 181, at para. 46, however, he did find (at para. 50 (CanLII)) that the accident caused the appellant “psychological injuries, including personality change and cognitive difficulties”. While this finding did not rest on an identified medical cause, it was based upon the testimony of friends and family of the appellant to the effect that, after the accident, the appellant’s personality changed for the worse. Once a funny, energetic, and charming individual, he had become sullen and prone to mood swings. Historically close relationships with family and friends had deteriorated. He complained of headaches.
[6] The trial judge further found that the appellant’s mental injury was aggravated by the third (September 17, 2005) accident. Applying the principle from Bradley v. Groves, 2010 BCCA 361, 326 D.L.R. (4th) 732, he found that the mental injury originally caused by the accident was indivisible from any injury caused by that later accident. Having regard to the appellant’s personality change, his loss of close personal relationships with family and friends, his age, and the period involved, the trial judge awarded him $100,000 for non-pecuniary damage. The claim for past income loss was dismissed.
(2) British Columbia Court of Appeal — 2015 BCCA 393, 81 B.C.L.R. (5th) 1
[7] On appeal, the respondents argued (inter alia) that the trial judge erred by awarding damages for mental injury where the appellant had not proven “a medically recognized psychiatric or psychological illness or condition” (para. 22). The Court of Appeal agreed, adding that such an illness or condition must be demonstrated by “expert medical opinion evidence” (para. 32). The law in this regard, it concluded, was left unchanged by this Court’s judgment in Mustapha.
[8] Further, the Court of Appeal also observed (at para. 34) that, in awarding damages for mental injury, the trial judge erred by “decid[ing] the case on a basis neither pleaded nor argued by [the appellant]”. Rather, the trial judge should have notified counsel that he was prepared to consider a claim that had not been pleaded, given the appellant an opportunity to amend his pleadings and, if the amendments were allowed, given the respondents an opportunity to call further evidence and make further submissions.
III. Analysis
A. Sufficiency of the Pleadings
[9] Drawing from the Court of Appeal’s statements regarding notice, the respondents argue that the trial judge’s award for mental injury was made in breach of procedural fairness, having no basis in the pleadings or submissions at trial. While I note that the respondents did not argue this point at the Court of Appeal, as the respondents now say and as the Court of Appeal said, cases should not be decided on grounds not raised (Insurance Corp. of British Columbia v. Patko, 2008 BCCA 65, 290 D.L.R. (4th) 687, at para. 37; Rodaro v. Royal Bank of Canada (2002), 59 O.R. (3d) 74 (C.A.), at para. 60; Burgsteden v. Long, 2014 SKCA 115, 378 D.L.R. (4th) 562, at para. 17; R. v. E.M.W., 2011 SCC 31, [2011] 2 S.C.R. 542, at para. 4). This rule is an instance of natural justice: each party is entitled to know and respond to the case that it must answer (Canada Trustco Mortgage Co. v. Renard, 2008 BCCA 343, 298 D.L.R. (4th) 216, at paras. 38-39).
[10] In claims for negligently caused mental injury, it is generally sufficient that the pleadings allege some form of such injury (Odhavji Estate v. Woodhouse, 2003 SCC 69, [2003] 3 S.C.R. 263, at para. 74). The appellant’s Statement of Claim alleges various injuries caused by the accident, including:
h) such further and other injuries as may become apparent through medical reports and examinations, details of which shall be provided as they become known;
and the effects or results of the said injuries upon the Plaintiff include headaches, fatigue, dizziness, nausea and sleeplessness.
(R.R., vol. I, at p. 7)
It also claims “general damages for pain and suffering, loss of earning capacity past, present and future, loss of opportunity, loss of enjoyment of life, loss of physical health . . .” (R.R., vol. I, at p. 7).
[11] At trial, the appellant introduced an expert report from Dr. Hiram Mok, a psychiatrist, who diagnosed the appellant with mental disorders (although it was unclear whether these disorders resulted from the accident or subsequent accidents). The appellant’s written closing submissions at trial also alleged the occurrence of a psychological reaction to the accident (or in other words a mental injury):
It is submitted that if the court does not accept a proven concussion, the evidence still shows that the Plaintiff suffered from a change in mood/personality, memory loss, and cognitive difficulties as a result of the July 5 2005 accident.
If not caused by a concussion, then it must be caused by something. The only logical conclusion is that these were caused by a psychological reaction to the accident, new pains, or an aggravation of old pains.
. . .
It is therefore submitted that, on a balance of probabilities, if the court finds that Mohsen did not suffer a concussion, then the only logical conclusion is that Mohsen’s problems with memory, cognition and change in behavior arose as a result of the July 2005 accident, which compounded upon the January 2003 accident injuries, and was compounded upon again in the September 2005 accident. [Emphasis added.]
(R.R., vol. I, at p. 285)
A similar line of argument was delivered in the appellant’s oral submissions:
Now, the alternative argument, of course, we have is that if you don’t find that a concussion has been made out, we submit that there is still evidence that he suffered chronic pain and some kind of emotional reaction, with resulting memory problems and cognitive problems, and change in mood, in the July 2005 accident, which but for the accident he would not have suffered from.
. . .
We say it’s a concussion. . . . But if it’s not a concussion, it’s some reaction to that accident that may be compounding upon the fact that he was injured in an earlier accident back in January 2003, but something changed in this man. . . . That accident triggered that, either by way of it being a concussion or by some kind of psychological, emotional reaction to everything.
. . .
. . . Something happened to him that changed him. We say it’s a concussion, but if it’s not a concussion, it must be some kind of emotional psychiatric reaction, which isn’t something that he could control. It clearly just came on him after the accident and caused him to become a changed individual between July and September 2005. And that is clear from the evidence of all of the family members. [Emphasis added.]
(R.R., vol. I, at pp. 190-92)
[12] None of these arguments regarding a “psychological”, “emotional” or “psychiatric” reaction elicited an objection from the respondents before the trial judge. And, in my view, the many allegations of such reaction appearing in the appellant’s oral and written closing submissions, combined with the broad heads of damage alleged in the pleadings, provided ample notice to the respondents of the case which they had to answer. I see no breach of procedural fairness here.
B. Mental Injury
[13] Liability in negligence law is conditioned upon the claimant showing (i) that the defendant owed a duty of care to the claimant to avoid the kind of loss alleged; (ii) that the defendant breached that duty by failing to observe the applicable standard of care; (iii) that the claimant sustained damage; and (iv) that such damage was caused, in fact and in law, by the defendant’s breach (Mustapha, at para. 3). At issue here is the third element. As they argued at the Court of Appeal, the respondents say that the trial judge erred by awarding damages for mental injury that did not correspond to a proven, recognized psychiatric illness. More specifically, the Court must answer the narrow question of whether it is strictly necessary, in order to support a finding of legally compensable mental injury, for a claimant to adduce expert evidence or other proof of a recognized psychiatric illness.
(1) Recovery for Mental Injury in Negligence Law
[14] The early common law’s posture towards claims for negligently caused mental harm was one of suspicion and sometimes outright hostility (McLoughlin v. O’Brian, [1983] 1 A.C. 410 (H.L.), at p. 433), and was “virtually programmed to entrench primitive suspicions and prejudices about ‘invisible’, intangible harm” (H. Teff, Causing Psychiatric and Emotional Harm: Reshaping the Boundaries of Legal Liability (2009), at p. 40). Mental injury was seen as “not derived through the senses, but [as] a product of the imagination” (Miner v. Canadian Pacific Railway Co. (1911), 18 W.L.R. 476 (Alta. S.C. en banc), at p. 478). This scepticism persisted into the last century, such that mental injury was not compensable unless accompanied by physical injury (see L. Bélanger-Hardy, “Reconsidering the ‘Recognizable Psychiatric Illness’ Requirement in Canadian Negligence Law” (2013), 38 Queen’s L.J. 583, at pp. 599-600).
[15] While the absolute bar to recovery for mental injury absent physical injury was eventually lifted, the suspicion which originally impelled that bar persisted, and common law courts continued to impose conditions upon recovery beyond those applied to claims for negligently caused physical injury. While, therefore, in England liability for negligently caused mental injury was first recognized as early as 1901 (Dulieu v. White & Sons, [1901] 2 K.B. 669 (Div. Ct.)), it was conditional upon “a shock which arises from a reasonable fear of immediate personal injury to oneself” (p. 675), or (after Hambrook v. Stokes Brothers, [1925] 1 K.B. 141 (C.A.)), “a reasonable fear of immediate personal injury either to [the claimant, or the claimant’s children]” (p. 152). While recovery for mental injury in Canada remained parasitic to recovery for compensable physical injury well into the 20th century (e.g. Miner), by mid-century Canadian courts had also begun to permit recovery on similar conditions as English law — typically, on claimants having had at the material time a reasonable fear of physical injury to themselves or to their family (e.g. Horne v. New Glasgow, [1954] 1 D.L.R. 832 (N.S.S.C.)).
[16] Further obstacles to recovery for mental injury arose in English law. In McLoughlin v. O’Brian, at pp. 419-21, Lord Wilberforce posited three considerations that could limit the boundaries of compensable “nervous shock”: the class of persons whose claims should be recognized (often referred to as relational proximity), the proximity of such persons to the accident (locational, or geographical proximity), and the means by which the “shock” is caused (temporal proximity) (G. H. L. Fridman, The Law of Torts in Canada (3rd ed. 2010), at p. 326). Where claimants alleged mental injury arising out of a sudden traumatic event, later judgments further distinguished between a “primary” victim (who was directly involved as a participant) and a “secondary” victim (who witnessed physical injuries caused to others) (see Alcock v. Chief Constable of South Yorkshire Police, [1992] 1 A.C. 310 (H.L.); and Page v. Smith, [1996] 1 A.C. 155 (H.L.)). This distinction has, however, sometimes proven difficult to apply in practice (as shown by the English law’s difficulty in categorizing the status of rescuers — see White v. Chief Constable of South Yorkshire Police, [1999] 2 A.C. 455 (H.L.)), and has been criticized as lacking foundation in principle, having no relevance to the justice of the claimant’s case (A. Beever, Rediscovering the Law of Negligence (2007), at pp. 405-7; J. Stapleton, “In Restraint of Tort”, in P. Birks, ed., The Frontiers of Liability (1994), vol. 2, 83, at p. 95; Mustapha v. Culligan of Canada Ltd. (2006), 84 O.R. (3d) 457 (C.A.), at para. 43). That this is so has never really been disputed. As Lord Hoffmann candidly acknowledged in White, “in this area of the law, the search for principle was called off in Alcock . . . . No one can pretend that the existing law . . . is founded upon principle.”
[17] Other Commonwealth courts have taken a different path. The High Court of Australia expressly rejected the categories delineated by the House of Lords, preferring a more flexible foreseeability of harm test (Tame v. New South Wales, [2002] HCA 35, 211 C.L.R. 317). In New Zealand, the primary/secondary victim distinction has not been definitively considered (S. Todd et al., The Law of Torts in New Zealand (5th ed. 2009), at pp. 182-84).
[18] Like the English courts, Canadian courts have occasionally struggled, as Professor Klar has described, “to find words which can clearly explain why, on the basis of arbitrary policy choices, certain types of claims seem to be too remote and uncompensable” (L. N. Klar, Tort Law (5th ed. 2012), at p. 505 (emphasis in original)). In Beecham v. Hughes (1988), 27 B.C.L.R. (2d) 1 (C.A.), and Rhodes v. Canadian National Railway (1990), 75 D.L.R. (4th) 248 (B.C.C.A.), for example, the multi-faceted proximity analysis formalized in McLoughlin v. O’Brian found favour. In Beecham, Lambert J.A. wrote (at p. 43):
. . . I would not put the entire emphasis on “causal proximity”, to the exclusion of “temporal proximity”, “geographical proximity” or “emotional proximity”. I would try to balance them all. A close but foreseeable emotional bond, as between a parent and child, may compensate, in the determination of the composite answer on liability, for a more remote causal proximity, as where the parent is not present when the child is injured.
[19] This Court has not, however, adopted either the primary/secondary victim distinction, or McLoughlin v. O’Brian’s disaggregated proximity analysis. Rather, in Mustapha, recoverability of mental injury was viewed (at para. 3) as depending upon the claimant satisfying the criteria applicable to any successful action in negligence — that is, upon the claimant proving a duty of care, a breach, damage, and a legal and factual causal relationship between the breach and the damage. Each of these elements can pose a significant hurdle: not all claimants alleging mental injury will be in a relationship of proximity with defendants necessary to ground a duty of care; not all conduct resulting in mental harm will breach the standard of care; not all mental disturbances will amount to true “damage” qualifiying as mental injury, which is “serious and prolonged” and rises above the ordinary emotional disturbances that will occasionally afflict any member of civil society without violating his or her right to be free of negligently caused mental injury (Mustapha, at para. 9); and not all mental injury is caused, in fact or in law, by the defendant’s negligent conduct.
[20] Indeed, the claim in Mustapha failed on that last element: the claimant’s damage was not caused in law by (that is, it was too remote from) the defendant’s breach. Mustapha thus serves as a salutary reminder that, even where a duty of care, a breach, damage and factual causation are established, there remains the pertinent threshold question of legal causation, or remoteness — that is, whether the occurrence of mental harm in a person of ordinary fortitude was the reasonably foreseeable result of the defendant’s negligent conduct (Mustapha, at paras. 14-16). And, just as recovery for physical injury will not be possible where injury of that kind was not the foreseeable result of the defendant’s negligence, so too will claimants be denied recovery (as the claimant in Mustapha was denied recovery) where mental injury could not have been foreseen to result from the defendant’s negligence.
[21] It follows that this Court sees the elements of the cause of action of negligence as furnishing principled and sufficient barriers to unmeritorious or trivial claims for negligently caused mental injury. The view that courts should require something more is founded not on legal principle, but on policy — more particularly, on a collection of concerns regarding claims for mental injury (including those advanced in this appeal by the intervener Insurance Bureau of Canada) founded upon dubious perceptions of, and postures towards, psychiatry and mental illness in general: that mental illness is “subjective” or otherwise easily feigned or exaggerated; and that the law should not provide compensation for “trivial matters” but should foster the growth of “tough hides not easily pierced by emotional responses” (A. M. Linden and B. Feldthusen, Canadian Tort Law (10th ed. 2015), at p. 449; R. Mulheron, “Rewriting the Requirement for a ‘Recognized Psychiatric Injury’ in Negligence Claims” (2012), 32 Oxford J. Leg. Stud. 77, at p. 82). The stigma faced by people with mental illness, including that caused by mental injury, is notorious (J. E. Gray, M. Shone and P. F. Liddle, Canadian Mental Health Law and Policy (2nd ed. 2008), at pp. 139 and 300-301), often unjustly and unnecessarily impeding their participation, so far as possible, in civil society. While tort law does not exist to abolish misguided prejudices, it should not seek to perpetuate them.
[22] Where, therefore, genuine factual uncertainty arises regarding the worthiness of a claim, this can and should be addressed by robust application of those elements by a trier of fact, rather than by tipping the scales via arbitrary mechanisms (R. Stevens, Torts and Rights (2007), at p. 56). Certainly, concerns about “subjective” symptoms or about feigned or exaggerated claims of mental injury are — like most matters of credibility — questions of fact best entrusted to the good sense of triers of fact, upon whose credibility determinations of liability and even of liberty often rest. In short, such concerns should be resolved by “a vigorous search for the truth, not the abdication of judicial responsibility” (Linden and Feldthusen, at p. 449; see also Toronto Railway Co. v. Toms (1911), 44 S.C.R. 268, at p. 276; Stevens, at p. 56).
[23] I add this. As to that first necessary element for recovery (establishing that the defendant owed the claimant a duty of care), it is implicit in the Court’s decision in Mustapha that Canadian negligence law recognizes that a duty exists at common law to take reasonable care to avoid causing foreseeable mental injury, and that this cause of action protects a right to be free from negligent interference with one’s mental health. That right is grounded in the simple truth that a person’s mental health — like a person’s physical integrity or property, injury to which is also compensable in negligence law — is an essential means by which that person chooses to live life and pursue goals (A. Ripstein, Private Wrongs (2016), at pp. 87 and 252-53). And, where mental injury is negligently inflicted, a person’s autonomy to make those choices is undeniably impaired, sometimes to an even greater degree than the impairment which follows a serious physical injury (Bourhill v. Young, [1943] A.C. 92 (H.L.), at p. 103; Toronto Railway, at p. 276). To put the point more starkly, “[t]he loss of our mental health is a more fundamental violation of our sense of self than the loss of a finger” (Stevens, at p. 55).
[24] It is also implicit in Mustapha that the ordinary duty of care analysis is to be applied to claims for negligently caused mental injury. With great respect to courts that have expressed contrary views, it is in my view unnecessary and indeed futile to re-structure that analysis so as to mandate formal, separate consideration of certain dimensions of proximity, as was done in McLoughlin v. O’Brian. Certainly, “temporal”, “geographic” and “relational” considerations might well inform the proximity analysis to be performed in some cases. But the proximity analysis as formulated by this Court is, and is intended to be, sufficiently flexible to capture all relevant circumstances that might in any given case go to seeking out the “close and direct” relationship which is the hallmark of the common law duty of care (Cooper v. Hobart, 2001 SCC 79, [2001] 3 S.C.R. 537, at para. 32, citing Donoghue v. Stevenson, [1932] A.C. 562 (H.L.), at pp. 580-81). As the Court has said, that analysis
focuses on factors arising from the relationship between the plaintiff and the defendant. . . .
. . .
As this Court stated in Hercules Managements Ltd. v. Ernst & Young, [1997] 2 S.C.R. 165, at para. 24, per La Forest J.:
The label “proximity”, as it was used by Lord Wilberforce in [Anns v. Merton London Borough Council, [1978] A.C. 728 (H.L.)], was clearly intended to connote that the circumstances of the relationship inhering between the plaintiff and the defendant are of such nature that the defendant may be said to be under an obligation to be mindful of the plaintiff’s legitimate interests in conducting his or her affairs.
(Cooper, at paras. 30 and 33 (emphasis in original))
(2) Recognized Psychiatric Illness
[25] As I have already said, the principal issue presented by this appeal — and, in particular, by the Court of Appeal’s conclusion that the appellant’s claim failed for lack of expert evidence demonstrating a recognized psychiatric illness — concerns the element of the cause of action of negligence requiring the claimant to show damage. More specifically, it requires the Court to consider what constitutes mental injury, and how it may be proven.
[26] The origins of the putative requirement of showing a recognized psychiatric illness appear to lie in Lord Denning M.R.’s speech in Hinz v. Berry, [1970] 2 Q.B. 40 (C.A.), at p. 42:
In English law no damages are awarded for grief or sorrow caused by a person’s death. No damages are to be given for the worry about the children, or for the financial strain or stress, or the difficulties of adjusting to a new life. Damages are, however, recoverable for nervous shock, or, to put it in medical terms, for a recognisable psychiatric illness caused by the breach of duty by the defendant.
This statement has been reiterated, albeit with some variation as to terminology. In McLoughlin v. O’Brian, at p. 431, for example, Lord Bridge described this hurdle as requiring “a positive psychiatric illness”. It has also been variously referred to as a “genuine”, “recognized” or “reco