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 (CanLII),  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.
 The trial judge found that the accident caused the appellant to suffer “psychological injuries, including personality change and cognitive difficulties” (para. 50) such as slowed speech, leading to a deterioration of his close personal relationships with his family and friends. He remarked (at para. 65) that the appellant “was a changed man with his irritability likely reflecting a dark realization that he was not the man he once was”. These findings have not been challenged. And, as findings of fact, they are entitled to appellate deference, absent palpable and overriding error (Housen v. Nikolaisen, 2002 SCC 33 (CanLII),  2 S.C.R. 235, at para. 10).
 I see no legal error in the trial judge’s treatment of the evidence of the appellant’s symptoms as supporting a finding of mental injury. Those symptoms fit well within the Mustapha parameters of mental injury which I have already recounted. While there was no expert testimony associating them with a condition identified in the DSM or ICD, I reiterate that what matters is substance — meaning, those symptoms — and not the label. And, the evidence accepted by the trial judge clearly showed a serious and prolonged disruption that transcended ordinary emotional upset or distress.
- Conclusion and Disposition
 I would allow the appeal, with costs in this Court and in the courts below.
 The respondents seek to have the matter returned to the Court of Appeal for determination of their alternative grounds of appeal before that court — that the trial judge erred in finding that the mental injury caused by the accident was indivisible from any injury arising from the third accident; and that the damage award was excessive. I would, instead, restore the trial judge’s award.
 The (in)divisibility of two injuries is a question of fact (Bradley, at paras. 32 and 37). Here, the trial judge found that “the cause of the change to the plaintiff’s personality and his cognitive difficulties cannot be divided based on the events before and after September 17, 2005” (para. 58). That finding, which was open to him to make on this record, is entitled to deference. The respondents now argue that the Workers Compensation Act, R.S.B.C. 1996, c. 492, “serves to sever the case even in the context of an indivisible injury”, “because the [Act] creates a complete scheme and bars compensation” (transcript, at p. 82). This argument, based on an interpretation of s. 10 of the Workers Compensation Act, was made briefly in oral argument at trial (see R.R., vol. I, at pp. 253-54), but did not appear in their written submissions. While this argument appears to have found support in Pinch v. Hofstee, 2015 BCSC 1888 (CanLII), it was not dealt with by the trial judge in this case. For whatever reason, the respondents did not raise it at the Court of Appeal or in their factum filed at this Court. It was revived only in their oral submissions before us. Without endorsing or rejecting the reasoning in Pinch, I observe that, without full submissions and a pertinent lower court record, this is not an appropriate circumstance to decide the effect of workers’ compensation legislation on the divisibility of injuries.
 As to the quantum of the award, I note that both accidents at the root of this appeal occurred nearly 12 years ago, and that the litigation — in which the respondents have admitted liability — is now (as of this month) fully 10 years old. Further, 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 (e.g. Zawadzki v. Calimoso, 2011 BCSC 45 (CanLII)).
 The Court’s power to remand to a court of appeal is discretionary (Supreme Court Act, R.S.C. 1985, c. S-26, s. 46.1; Wells v. Newfoundland, 1999 CanLII 657 (SCC),  3 S.C.R. 199, at para. 68). The passage of time since the acknowledged wrong against Mr. Saadati and the commencement of these proceedings militates against remand. As in Wells, the damages assessed by the trial judge are reasonable, supported by the record, and fairly compensate the appellant’s loss. I conclude, therefore, that it would not “be just in the circumstances” (s. 46.1) to remand this matter to the Court of Appeal.
Appeal allowed with costs throughout.
Solicitors for the appellant: Preszler Law, Vancouver.
Solicitors for the respondents: Intact Insurance Company, Vancouver.
Solicitors for the intervener: Stikeman Elliott, Toronto.
 Legal nomenclature describes this kind of injury variously: for example, as “nervous shock” (see L. N. Klar, Tort Law (5th ed. 2012), at p. 498); or “mental injury” (see Mustapha v. Culligan of Canada Ltd., 2008 SCC 27 (CanLII),  2 S.C.R. 114; L. Bélanger-Hardy, “Reconsidering the ‘Recognizable Psychiatric Illness’ Requirement in Canadian Negligence Law” (2013), 38 Queen’s L.J. 583, at p. 586); or “psychological injury” (see Bélanger-Hardy, at p. 584); or “psychiatric damage” (A. M. Linden and B. Feldthusen, Canadian Tort Law (10th ed. 2015), at p. 447), or “psychiatric injury” (Mustapha). For his part, the trial judge employed the term “psychological injury”, while the Court of Appeal referred to “psychiatric or psychological illness”. While there may be meaningful distinctions among these terms within the relevant disciplines, for the purpose of deciding the general bounds of recoverability in law, no legal significance attaches to the particular term used. For the sake of clarity, however, I refer to the injury alleged here as “mental injury”.