Do I need a psychiatrist’s opinion to prove my mental injuries? What if the trial judge gets the law wrong on that point?
In a decision from September 2018, the British Columbia Court of Appeal considered whether a trial judge awarded the proper pain and suffering damages. The case is Riley v. Ritsco (2018 BCCA 366) and the trial judge awarded $65K for pain and suffering, in part based on his conclusion that in the absence of expert evidence, he was “unable to conclude that [Mr. Riley’s] emotional or mental state was adversely affected by the accident or whether the changes in his social life resulted from the accident”. The plaintiff (Mr. Riley) challenged that conclusion, alleging it was an error.
In allowing the appeal and concluding the trial judge made an error in law, the Appellate Court increased the pain and suffering damages to $85,000.00. In doing so, they reiterated the law, and reviewed the evidence provided by Mr. Riley himself, concluding that the symptoms were easily connected to the accident without need for expert evidence:
[53] …the Supreme Court of Canada in Saadati rejected the idea that mental injuries are compensable only when they manifest themselves in the form of diagnosed psychological conditions or psychiatric illnesses:
[31] Confining compensable mental injury to conditions that are identifiable with reference to … diagnostic tools [such as the Diagnostic and Statistical Manual of Mental Disorders (“DSM”), published by the American Psychiatric Association, and the International Statistical Classification of Diseases and Related Health Problems (“ICD”), published by the World Health Organization] 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 ….
[54] The Court did not suggest that expert evidence with respect to mental injuries is valueless, nor that all claims can succeed without expert evidence. It did, however, make it clear that there is no legal impediment that obliges a claimant to advance expert medical evidence in order to advance a claim for mental injuries:
[38] [None] of this [should] be taken as suggesting that expert evidence cannot assist in determining whether or not a mental injury has been shown. In assessing whether the claimant has succeeded, it will often be important to consider, for example, how seriously the claimant’s cognitive functions and participation in daily activities were impaired, the length of such impairment and the nature and effect of any treatment …. To the extent that claimants do not adduce relevant expert evidence to assist triers of fact in applying these and any other relevant considerations, they run a risk of being found to have fallen short.… [W]hile relevant expert evidence will often be helpful in determining whether the claimant has proven a mental injury, it is not required as a matter of law.
[55] In the case before us, Mr. Riley testified as to a range of emotions associated with his injuries. For instance, when asked about emotions he was experiencing around 2013, he testified:
… [I]t was a stressful situation for me. I was – I think I was getting short‑tempered because I am – I am probably realizing that the – the job is aggravating my – my injuries and I’m – I’m – I’m probably realizing that getting back to a normal life that I had prior to the accident is – is not really going to happen, it’s – it’s – so there is – I’m dealing with stress, I’m dealing with the pain, I’m dealing with anxieties, I’m getting short-tempered. I – I – the – it was a frustrating stage in my life.
[56] The link between the emotional suffering Mr. Riley refers to and the accident could not be clearer. Further, it is difficult to understand what assistance a psychologist or psychiatrist could offer to the court in clarifying the connection between the accident and the anger, stress and frustration that Mr. Riley felt.
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