Documentation:Torts/Negligence Mental injury

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Negligent infliction of mental injury
It is now clearly established in Canadian common law that mental injury is a recoverable type of damage.[1] The law tends not to recognize mere psychological upset, but rather requires the psychological disturbance to rise to a level that is serious and prolonged, extending beyond ordinary anxieties, annoyances, and fears that people may encounter in every day society.[2]

The historical development of negligent infliction of mental injury

A woman sitting on a couch with her head in her hands.

The common law's early view of negligently inflicted mental injury was "virtually programmed to entrench primitive suspicions and prejudices about 'invisible', intangible harm".[3] Mental injury was described as "a product of the imagination",[4] and even in the last century, courts were reluctant to accept it as a form of compensable damage unless accompanied by physical injury.[5]

By the middle of the 20th century, Canadian courts became somewhat more open towards recognizing mental injury, though recovery was still premised on certain conditions influenced by English law, such as requiring claimants to have had, at the material time, a reasonable fear of physical injury.[6]

In the 1982 English case McLoughlin v. O'Brien, Lord Wilberforce raised three conditions that might limit a plaintiff's ability to recover for mental injury: relational proximity, geographical proximity, and temporal proximity.[7] While Canadian courts did consider this approach to some extent,[8] it was later rejected in the seminal case Saadati v. Moorhead.[9]

In Saadati, the Supreme Court of Canada held that it is unnecessary to analyze mental injury claims differently from physical injury claims. Instead, it is sufficient to require a claim for mental injury to satisfy the regular elements of negligence: a duty of care, a breach, damage, and factual and legal causation.[10] The Court also clarified that a plaintiff need not prove a recognized psychiatric illness so long as the level of psychological disturbance is serious and prolonged beyond the types of fears and annoyances expected in ordinary society.[11] Furthermore, the Court made a point of repudiating the stigma and skepticism attached to mental injury, stating that tort law "should not seek to perpetuate [misguided prejudices]."[12]

Potential causes of mental injury

Close-call traumatic events

White delivery truck with Culligan Bottled Water written on the side, along with an image of a bottle of water.

Mental injury arising from traumatic events without immediate physical injury was once unrecoverable because it was considered not foreseeably flowing from the defendant's negligent act.[13][14] Canadian law today, however, allows plaintiffs to recover for mental injury itself.

In Saadati v. Moorhead, the plaintiff's personality change and cognitive difficulties caused by a motor vehicle accident were sufficient evidence of damage.[15] In Mustapha v. Culligan of Canada Ltd., the plaintiff's major depressive disorder, anxiety, and phobia, which were caused by seeing a dead fly in his bottled drinking water, established that the plaintiff had sustained actionable damage.[16]

However, the issue of remoteness in law still remains and may be a significant barrier to claims of mental injury from traumatic events. Despite holding that the plaintiff had sustained damage in the form of mental injury, the Supreme Court in Mustapha somewhat controversially found the injury too remote in law to support a claim in negligence because there was no evidence that it was reasonably foreseeable that a person of ordinary fortitude would have suffered mental injury.[17]

Witnessing traumatic events

Witnesses to traumatic events have been described in English cases as "secondary victims": those who witnessed injury caused to others but, unlike primary victims, were not directly involved in the incident.[18] However, the Supreme Court of Canada has not adopted the primary/secondary victim distinction.[19] The question that judges try to address instead is whether the plaintiff has proved the regular elements of negligence.[20] In negligence cases involving witnesses to traumatic events, analyzing the mental injury's remoteness in law may be of particular focus in the analysis.[21] The plaintiff must show it was reasonably foreseeable that the negligent act could cause psychological harm to a witness.[22]

In Marcena v. Thomson, for example, a plaintiff suffered traumatic psychological injury after witnessing his wife struck by a vehicle.[20] The British Columbia Supreme Court held that "[a] reasonable person would have foreseen that striking a pedestrian with a motorcycle could cause traumatic psychological injury to a close family member who witnessed the accident."[22]

Learning of traumatic events

The Hillsborough disaster
A photo of a football match, capturing the green field and several players in jerseys.
Hillsborough Stadium in 1991, two years after the disaster.
This documentary discusses the events of the Hillsborough disaster,[23] a sporting match that through overcrowding resulted in the deaths of 96 spectators and injury of 450.[24][25] Afterwards, family members of the deceased brought claims for psychiatric injury suffered from viewing the disaster.[26]

For 200 years, the common law was of the position that a person could not bring a claim for losses resulting from the death of a family member.[27] This was the view despite the fact that a person could sue for losses resulting from a family members' injuries.[28] Additionally, while courts sometimes permitted recovery for those who witnessed bodily injury or death, they refused for some time to allow plaintiffs to recover based on the mere learning of events.[29]

The law has undergone development in this regard. In Snowball v. Ornge, the Ontario Supreme Court held that the learning of a family member's death resulting in mental injury may be grounds for a valid claim in negligence.[30] Following Saadati, the Court further emphasized that the outcome of such a claim will still depend on the establishment of the ordinary elements of a negligence action.[30]

Furthermore, while Ontario has not gone so far as to legislatively allow recovery for mental anguish resulting from the death of a family member by negligence, the Family Law Act does permit recovery for loss of guidance, care, and companionship.[31]

Legislation
Family Law Act, RSO 1990, c F.3, s 61.[32]
61(1) If a person is injured or killed by the fault or neglect of another under circumstances where the person is entitled to recover damages, or would have been entitled if not killed, the spouse, as defined in Part III (Support Obligations), children, grandchildren, parents, grandparents, brothers and sisters of the person are entitled to recover their pecuniary loss resulting from the injury or death from the person from whom the person injured or killed is entitled to recover or would have been entitled if not killed, and to maintain an action for the purpose in a court of competent jurisdiction. 

Damages in case of injury

(2) The damages recoverable in a claim under subsection (1) may include, ***

(e) an amount to compensate for the loss of guidance, care and companionship that the claimant might reasonably have expected to receive from the person if the injury or death had not occurred.  R.S.O. 1990, c. F.3, s. 61 (2).

Case law after Saadati v. Moorhead

A small glass vial of medical labelled "heparin" next to a syringe.
Following his surgery, Bothwell was given the drug Heparin instead of Voluven. Heparin is known to cause severe bleeding.[33]

Saadati v. Moorhead held that a plaintiff's mental injury claim does not require proof of a recognized psychological illness but rather the establishment of psychological disturbance beyond ordinary annoyances, fears, and anxieties.[11] In light of this ruling, subsequent decisions have tried to determine what actually satisfies the threshold described.

In Bothwell v. London Health Sciences Centre, the plaintiff was given the wrong medication after surgery and sought damages for mental injury caused by the error.[34] Justice Gillese reiterated the decision in Saadati, stating that in distinguishing between mental injury and mere psychological upset, the court must consider "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 sought and taken in relation to the psychological upset."[35] He concluded that Bothwell's persisting feelings of anger and frustration about the incident, while understandable, amounted only to psychological upset and did not meet the threshold for compensable injury.[36]

Discussion questions

  • Can it be said that in light of Saadati v. Moorhead[37] the judicial approach to recovery for negligently inflicted mental injury is aligned with the approach to recovery for negligently inflicted physical injury?
  • What are the difficulties in setting principled limits on recovery for negligently inflicted mental injury? Why are courts concerned to set such limits?
  • Should mental injury be more readily recoverable as a head of damage when incurred in the course of coming to the aid of or rescuing another?
  • Is it always the case that plaintiffs who witness serious careless injury to a close family member can recover for mental suffering that results?


  1. ↑ Mustapha v. Culligan of Canada Ltd., 2008 SCC 27 (§17.1.2) at paras 8.
  2. ↑ Mustapha v. Culligan of Canada Ltd., 2008 SCC 27 (§17.1.2) at para 9.
  3. ↑ Teff, Harvey (2008). Causing psychiatric and emotional harm: reshaping the boundaries of legal liability. Bloomsbury Publishing. p. 40.
  4. ↑ Miner v. C. P. R., 1910 CanLII 340 (ABCA) at 478.
  5. ↑ Saadati v. Moorhead, 2017 SCC 28 (§19.2.1.3) at para 14 citing Belanger-Hardy, Louise (2013). "Reconsidering the 'Recognizable Psychiatric Illness' Requirement in Canadian Negligence Law". Queen's Law Journal. 38(2): 599–600.
  6. ↑ Saadati v. Moorhead, 2017 SCC 28 (§19.2.1.3) at para 15.
  7. ↑ McLoughlin v O'Brian, [1982] UKHL 3 (BAILII) at 5.
  8. ↑ Beecham v. Hughes, 1988 CanLII 2839 (BCCA) at para 133.
  9. ↑ Saadati v. Moorhead, 2017 SCC 28 (§19.2.1.3) at para 24.
  10. ↑ Saadati v. Moorhead, 2017 SCC 28 (§19.2.1.3) at paras 19–22, 24.
  11. ↑ 11.0 11.1 Saadati v. Moorhead, 2017 SCC 28 (§19.2.1.3) at para 37.
  12. ↑ Saadati v. Moorhead, 2017 SCC 28 (§19.2.1.3) at para 21.
  13. ↑ Victorian Railway Commissioners v. James Coultas and Mary Coultas (Victoria), [1888] UKPC 3 (§19.2.1.1) at 3-4.
  14. ↑ Mitchell v. Rochester Railway Co., 151 NY 107 (NY CA 1896) (§19.2.1.2) at paras 6–7.
  15. ↑ Saadati v. Moorhead, 2017 SCC 28 (§19.2.1.3) at paras 39–40.
  16. ↑ Mustapha v. Culligan of Canada Ltd., 2008 SCC 27 (§17.1.2) at para 10.
  17. ↑ Mustapha v. Culligan of Canada Ltd., 2008 SCC 27 (§17.1.2) at paras 12–18.
  18. ↑ Saadati v. Moorhead, 2017 SCC 28 (§19.2.1.3) at para 16.
  19. ↑ Saadati v. Moorhead, 2017 SCC 28 (§19.2.1.3) at para 19.
  20. ↑ 20.0 20.1 Marcena v. Thomson, 2019 BCSC 1287 (§19.2.2.2).
  21. ↑ Marcena v. Thomson, 2019 BCSC 1287 (§19.2.2.2) at paras 68–75.
  22. ↑ 22.0 22.1 Marcena v. Thomson, 2019 BCSC 1287 (§19.2.2.2) at paras 74–75.
  23. ↑ 30 for 30: Soccer Stories (8 May 2016). "Hillsborough". WatchDocumentaries.
  24. ↑ Tikkanen, Amy (8 April 2024). "Hillsborough disaster". Britannica.
  25. ↑ Conn, David (2016). "Hillsborough disaster: deadly mistakes and lies that lasted decades". The Guardian.
  26. ↑ Alcock v. Chief Constable of South Yorkshire, [1991] UKHL 5 (BAILII).
  27. ↑ Baker v. Bolton (1808), 170 ER 1033.
  28. ↑ Ferraiuolo v. Olson, 2004 ABCA 281 at paras 19–30.
  29. ↑ Snowball v. Ornge, 2017 ONSC 4601 (§19.2.3.2) at para 16.
  30. ↑ 30.0 30.1 Snowball v. Ornge, 2017 ONSC 4601 (§19.2.3.2) at para 21.
  31. ↑ Snowball v. Ornge, 2017 ONSC 4601 (§19.2.3.2) at para 15.
  32. ↑ Family Law Act, RSO 1990, c F.3, ss 61(1), 61(2).
  33. ↑ Bothwell v. London Health Sciences Centre, 2023 ONCA 323 at para 3.
  34. ↑ Bothwell v. London Health Sciences Centre, 2023 ONCA.
  35. ↑ Bothwell v. London Health Sciences Centre, 2023 ONCA 323 at para 32.
  36. ↑ Bothwell v. London Health Sciences Centre, 2023 ONCA 323 at para 51.
  37. ↑ Saadati v. Moorhead, 2017 SCC 28 (§19.2.1.3).
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