Canadian Underwriter

How this auto claimant won additional pain and suffering damages

October 1, 2018   by Greg Meckbach

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The controversial 2017 Saadati ruling from the Supreme Court of Canada was one reason an auto accident victim recently got an increase in pain and suffering damages.

In Saadati’s lawsuit, a judge with the Supreme Court of B.C. awarded pain and suffering damages partly based on testimony from family and friends of Mohsen Saadati, rather than based on medical evidence.

In the most recent case, Leo John Riley, now 69, was a passenger in a vehicle in 2011 that was driving east along a road in Maple Ridge, B.C. when it T-boned a westbound vehicle making a left turn.

Riley sued both Paul Ritsco and Carol Ann Tones – respectively the driver of the other vehicle and the driver of the vehicle in which Riley was riding. In Riley v Ritsco, released June 5, 2016, Judge Gregory Bowden of the B.C. Supreme Court found Ritsco was 100% liable and Tones was not at fault because she could not have avoided the collision.

Ritsco was ordered pay Riley more than $150,000, of which $65,000 was for pain and suffering, known in legal parlance as non-pecuniary damages.

Both Riley and Insurance Corporation of B.C. appealed. Riley argued, among other things, that he should get a higher pain and suffering award. ICBC argued on cross-appeal that Judge Bowden should have deducted income tax in awarding damages for past wage loss.

In Riley v Ritsco, released this past Thursday, the Court of Appeal for B.C. ruled in favour of ICBC on the issue of deducting income tax. It also ruled in favour of Riley on several grounds, including the non-pecuniary damages. Riley’s pain and suffering award is now $85,000.

Originally, Judge Bowden said without expert evidence in the field of psychiatry or psychology, he could not conclude that the collision adversely affected Riley’s emotional or mental state.

But Judge Bowden did not need evidence from a psychiatrist or psychologist, Judge Harvey Groberman of the B.C. Court of Appeal wrote, citing Saadati v. Moorhead, released June 2, 2017, three days before Judge Bowden released his ruling in Riley.

Mohsen Saadati was driving a tractor that was rear-ended by a Hummer in 2005, driven by Grant Moorhead. Saadati was awarded $100,000 in 2014 in pain and suffering. The award was quashed on appeal but restored by Supreme Court of Canada.

The Insurance Bureau of Canada – which had intervener status in Saadati – argued that a plaintiff should not be awarded damages for the psychological effect of a tort unless it causes a “recognizable psychiatric illness.”

The Supreme Court of Canada disagreed, ruling that a judge in a lawsuit may use non-medical evidence to find that a plaintiff has suffered a 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,” Justice Russell Brown of the Supreme Court of Canada wrote in Saadati.

In Saadati’s lawsuit, a judge with the Supreme Court of B.C. had awarded non-pecuniary damages partly based on testimony from family and friends of Saadati, rather than based on medical evidence.

As an intervenor, IBC argued against “allowing for highly subjective second-hand lay evidence to support claims for psychological harm.”

But in its unanimous ruling, the Supreme Court of Canada said a trial judge should look at “the level of harm” shown by a plaintiff’s symptoms, “not to whether a label could be attached to them.”

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