Thresholds of Actionable Mental Harm in Negligence: A Policy-Based Appraisal

Common law courts, in Canada and elsewhere, currently insist on proof of a recognizable psychiatric illness (RPI) before granting damages to plaintiffs seeking compensation for stand-alone mental harm caused by negligent acts. This article argues that the time has come to revisit this well-entrenched principle. The inquiry focuses specifically on the policy concerns underlying the current rule. As a first step, policy considerations for and against limiting the extent of actionable mental harm are canvassed and assessed. The author concludes that some of the perceived advantages of the RPI rule, in particular predictability,are debatable and that insistence on the traditional formula raises issues of access and fairness. As a second step, the option of eliminating all thresholds is examined and rejected in favour of a "no compensation for mere upsets" threshold. The author suggests that this threshold will allow courts to strike the correct balance between deterring legal actions based on "mere upsets" of life and recognizing the legitimacy of "mid-spectrum" mental harm, whether psychiatric, psychological,or emotional in nature.