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Significant change in type of evidence needed for psychiatric injury in personal injury cases

There has been a significant development in the law relating to the proof required when claiming psychological damages which will have a positive impact on plaintiffs in personal injury cases, including medical malpractice lawsuits and ICBC claims. Until recently a plaintiff with psychological injuries was required to provide the court expert evidence from a physician, preferably a psychiatrist, proving that he or she suffered from a medically recognized psychological or psychiatric condition before he or she would be entitled to damages. In contrast, a plaintiff with a physical injury could testify to the effects of an accident and obtain damages without having a physician testify that the problems fit into a particular classification of injury. In Saadati v. Moorehead the Supreme Court of Canada ruled that there is no justification for treating the types of injury differently and that those who suffer mental injury should be accorded the same level of protection as those who sustain a physical injury. It will be up to the trial judge to determine if there is sufficient evidence to prove such an injury, even without a physician offering a particular diagnosis such as Post Traumatic Stress Disorder or clinical depression. This will assist plaintiffs in medical malpractice, motor vehicle and slip and fall claims, but it is important to note that having a psychiatrist testify that an accident or physician’s negligence did cause a recognized type of disorder will still be important to ensure that the judge is convinced and also to ensure that the plaintiff receives a fair amount of damages.

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