BC Injury Law and ICBC Claims Blog

No Failure to Mitigate Damages For Refusing Medical Marijuana

While BC Courts do recognize that the cost of medical marijuana can form a basis for damages in a personal injury claim, one matter that, to my knowledge, has never been addressed is whether failing to take prescribed medical marijuana can amount to a failure to mitigate damages.  This issue was dealt with in reasons for judgement released today.

In today’s case (Glesby v. MacMillian) the Plaintiff was involved in a 2009 collision. ¬†Liability was admitted. ¬†In the course of the claim a physician suggested medical marijuana. ¬†The Plaintiff did not follow this advice. ¬†The Defendant apparently argued the damages should be reduced for this failure to mitigate however Mr. Justice Baird declined to do so. ¬†The Court, despite having reservations about the Plaintiff’s credibility, accepted her explanation for not following the advice to try medical marijuana. ¬†In reaching this conclusion the Court provided the following comments:

[47]¬†¬†¬†¬†¬†¬†¬†¬†¬†Dr.¬†Hershler examined the plaintiff on May 2, 2013, some five months before trial. His diagnosis was much the same as Dr.¬†Kleinman‚Äôs, but without discussion of a possible interrelationship of physical and psychological factors. Soft tissue injury and chronic pain were the culprits, he said, and echoed Dr.¬†Kleinman‚Äôs recommendation that the plaintiff should embark upon a core strengthening program. He also encouraged the plaintiff to consider the use of medical cannabis to manage her pain. The plaintiff has not taken this advice, either. She has reservations about the legality of the acquisition and use of cannabis, and, in any event, she is a committed life-long abstainer from narcotics and drugs of all sorts…

[69]         I decline to find that the plaintiff failed to mitigate her losses by not taking medical cannabis. Dr. Hershler’s advice came after the end of what, for the reasons just stated, I consider to be a reasonable recovery period. In any event, I accept as sincere the plaintiff’s reservations about the acquisition and use of cannabis.

 

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