Mohsen Saadati, by his Litigation Guardian, Sara Zarei v. Grant Iain Moorhead, et al.

(British Columbia) (Civil) (By Leave)


Torts - Negligence, Damages.


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Torts — Negligence — Personal injury — Damages — Applicant claiming non-pecuniary damages for psychological injury arising out of motor vehicle accident — Applicant unable to prove recognized psychological or psychiatric condition — Did the Court of Appeal err in ruling that trial judges have no discretion whatsoever to award damages for psychological injuries in the absence of a specific medical diagnosis of what the psychological injury is, even if the trial judge finds as fact from testimonial evidence that a plaintiff has suffered a recognizable psychological injury as a result of the negligence of a defendant? — In circumstances where a plaintiff becomes incompetent during litigation and cannot testify at his personal injury trial, which removes the factual basis of a psychiatric report in evidence which diagnoses a psychological injury, can a trial judge then rely on testimonial evidence of friends and family alone award compensation for the psychological injury?

Between 2003 and 2009, Mr. Saadati was involved in five motor vehicle accidents, sustaining various injuries. He was declared mentally incompetent in 2010. This litigation arises out of the second accident on July 5, 2005, whereby Mr. Saadati’s tractor-truck was hit by a Hummer driven by the respondent Mr. Moorhead. Mr. Saadati’s vehicle sustained damage. Mr. Saadati started this action after the third accident. He sought non-pecuniary damages and past wage loss. The respondents admitted liability for the accident, but opposed the claim for damages.

The evidence at trial focused on the injuries suffered in the second accident and the effect that the third accident had on those injuries. Mr. Saadati was unavailable to testify at trial. The trial judge rejected Mr. Saadati’s claim for a physical injury arising from the accident. The trial judge also found that Mr. Saadati had not established a psychological injury, based on the evidence of his expert psychiatrist. The trial judge, however, found that the testimony of Mr. Saadati’s family and friends had established a psychological injury.