Canadian Lawyer

w w w . c a n a d i a n l a w y e r m a g . c o m F E B R U A R Y 2 0 1 9 43 believe it and their diagnostic protocol is in place." Amelia Staunton is a Vancouver partner at insurance defence boutique Dolden Wallace Folick LLP and has defended personal injury claims for 14 years, mostly catastrophic bodily injury claims. She says she too has seen a rise in diagnoses for SSD and other psychiatric disorders and that the 2017 Supreme Court deci- sion Saadati v. Moorhead has crystallized the importance of considering the psychiatric injuries which accompany physical injuries that are the result of a tortious act. In the British Columbia motor-vehicle case, Mohsen Saadati sued Grant Moorhead, Thi Hao Hoang and Able Leasing Ltd. for negligence causing mental injury. The trial judge awarded Saadati damages for mental injury based on lay witnesses who established that Saadati's personality had changed due to the accident, rather than using expert witnesses to give a medical opinion of a "recognizable psychiatric illness." The Court of Appeal found that approach lacking and reversed the decision. The Supreme Court, however, took a different approach. The court found that requiring mental injury to pass the threshold of medical-expert testimony showing a "recogniz- able psychiatric illness," while not requiring the same "clas- sificatory label" of physical injury, would amount to unequal protection for those with a mental injury. "The law of negligence accords identical treatment to mental and physical injury," the decision states. The court cited the Supreme Court case Mustapha v. Culligan of Canada Ltd. as setting out the threshold for mental injury. In that decision, the justices wrote that psychological injury must rise above "psychological upset." It must be "serious trauma or illness" that is prolonged and cannot be merely "disgust, anxiety, agitation." In Saadati, the justices found the injury passed that test. Staunton says that prior to Saadati, case law in B.C. indi- cated that psychiatric injury without an underlying physical condition was not compensable, with some exceptions. "It is, I think, sort of emblematic of a trend at the plaintiff 's bar to look at the plaintiff as a whole person, rather than just focus on the physical injury," she says. Staunton also believes that the broader public health policy in the province is leading to the increase in SSD claims against insurers. B.C. has seen closures of mental health facilities to move to a "community-based system," she says. "I personally have noticed that with the dilution of mental health services in this province, that there's been a correspond- ing increase in the volume of these claims," she says. "Plaintiffs who have these disorders and genuinely want to be treated can't find people to help them. And that's a real problem." Renn Holness of Holness Law Group PLC in Vancou- ver has been working in per- sonal injury law for 22 years and happens to be the son of a former head of Neurosur- gery at Dalhousie University and president of the Cana- dian Neurological Society. In 2013, when the DSM-5 came out, it brought together several disorders under the banner of SSD to "better reflect the complex interface between mental and physical health," accord- ing to the American Psychiatric Association. While good for treatment, Holness says the diagnostic criteria are restrictive for L E G A L R E P O R T "This is not somebody faking or committing fraud. They genuinely believe it and their diagnostic protocol is in place." Kiran Birdi, Scott Venturo Rudakoff LLP What do your clients need? The means to move on. Guaranteed ™ . Baxter Structures customizes personal injury settlements into tax-free annuities that can help your clients be secure for life. Need more information? Contact us at 1 800 387 1686 or baxterstructures.com Kyla A. Baxter, CSSC PRESIDENT, BAXTER STRUCTURES READERS ' CHOICE 2018-19 STRUCTURED SETTLEMENTS ntitled-4 1 2018-10-25 5:57 PM

• Cover