ICBC Law

BC Injury Law and ICBC Claims Blog

Excessive Drug Use Linked To Collision Related Injuries, Non-Pecuniary Loss Assessed at $100,000

Reasons for judgement were released today by the BC Supreme Court, Vancouver Registry, addressing whether a Plaintiff’s drug abuse problems were caused by collision related injuries.

In today’s case (Fabretti v. Gill) the Plaintiff was 12 years old when involved in a serious head on collision which killed the occupants in the at fault vehicle.  The Plaintiff suffered a mild brain injury, a variety of soft tissue injuries and chronic, but not disabling, pain.  Subsequent to this the Plaintiff started abusing drugs which negatively impacted his life.  At trial the Court found that the Plaintiff’s substance abuse difficulties were linked to the collision related injuries.  In assessing non-pecuniary damages at $100,000 Madam Justice Kloegman provided the following reasons:

[77]         Dr. Lu stated that it was impossible to know whether or not the plaintiff would have developed an addiction in the absence of the 2005 Accident. Once again, the plaintiff does not have to prove to a scientific certainty that he would not have developed a drug addiction but for the Accident, only that it is more likely than not it was caused by the Accident. On the totality of the evidence, I find on a balance of probabilities that the plaintiff’s drug addiction was caused by the Accident.

[78]         ICBC argues that a causal connection between the Accident and the plaintiff’s addiction can be shown only if the plaintiff’s alleged reason for the drug use as a coping mechanism or reaction to the chaos that followed the Accident is found to be true. ICBC submits that this allegation can only hold true if the plaintiff and his family were found to be credible. I do find the evidence of the Fabrettis to be credible and consistent with the clinical records, so this submission fails.

[79]         ICBC points to evidence that the plaintiff might have started drugs before the Accident, and in response to peer pressure to which he would have been exposed in any event.

[80]         This proposition of ICBC was put to Dr. Lu during cross-examination. He explained that although prior use may increase risk, many people experiment with recreational drug use but only a small percentage go on to develop an addiction. By age 15, 60% of people living on the west coast in Canada have tried marihuana. More than 80% of people experiment with drugs, but less than 10% become regular users. Dr. Lu had no doubt that the Accident caused the plaintiff’s addiction.

[81]         Accordingly, I find that the plaintiff’s drug addiction was more likely than not caused by the Accident…

[91]         On a balance of probabilities, I find that the plaintiff has no permanent physical disability arising from his injuries. He has no lasting cognitive effects from the Accident. The impact of his chronic pain on his function does not amount to an impairment and should not disable him from employment, although his capacity to perform all forms of employment to the same degree as before the Accident may have been realistically affected. At present his marihuana consumption is a negative factor in his full functional recovery, and must be brought under control. From the evidence, the success of the plaintiff’s future is highly dependent on eradicating his excessive drug use. The plaintiff had the wherewithal to stop his cocaine and MDMI use in high school without assistance. I believe the plaintiff, with the help of his family and professional addiction treatment, has the fortitude to overcome his dependency on marihuana. Nonetheless, I am aware that like any other addict, he will always be at risk of relapse…

[97]         From the cases cited to me, I found the decisions of Houston v. Kine, 2010 BCSC 1289 and Parfitt v. Mayes et al, 2006 BCSC 125 to be the most helpful. In Parfitt, the court accepted that the plaintiff did not have a permanent disability. In Houston, the court found that the prognosis was favourable with appropriate treatment. I find the impact of the plaintiff’s injuries to be slightly less than both the plaintiffs in Parfittand Houston. Accordingly I award the plaintiff the sum of $100,000 for pain and suffering.

 

Be Sociable, Share!

Tags: , , ,