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Failure to Mitigate Cuts Pain and Suffering Award in Half

Update November 6, 2017Today the BC Court of Appeal dismissed an appeal of the below judgement

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Reasons for judgement were released today by the BC Supreme Court, New Westminster Registry, cutting a Plaintiff’s non-pecuniary damage award in half due a failure to mitigate loss.

In today’s case (Mullens v. Toor) the Plaintiff was injured in a 2012 collision caused by the Defendant.  The Plaintiff suffered physical and psychological injuries and the Court concluded the Plaintiff’s recovery could have been improved had she more diligently followed medical advice.  As a result the Plaintiff’s non-pecuniary assessment of $140,000 was reduced by 50%.  In reaching this result Mr. Justice Verhoeven provided the following reasons:

[116]     She has been unreasonably resistant and reluctant to accepting that her psychological condition requires medical treatment, including the use of anti-depressant medication, and psychiatric treatment. She was resistant to the early advice of Dr. Chu about anti-depressant medication in August 2012. She resisted the advice of Dr. Hanson until finally relenting in December 2012 only when he insisted. She testified that she was concerned that a diagnosis of depression and taking anti-depressant medications could have some negative consequences, such as for insurance. She did not give much detail about this. This could justify some degree of reluctance but no more. Embarrassment about accepting treatment for a mental injury is not a valid excuse. ..

[121]     In sum, the plaintiff ought reasonably have begun use of anti-depressant medication earlier than she did initially.  She could have resumed use of Pristiq or other suitable anti-depressant medication by July 2015 when she stopped breastfeeding, if not earlier. She ought to have been treated by a psychiatrist. Better engagement with medical and psychiatric treatment would have also increased the chances of a successful attempt to return to work which could have been attempted in early 2013 and again in 2015, and 2016.

[122]     I doubt that the plaintiff has engaged in physical exercise to the extent recommended. Physical exercise has been consistently recommended to her. In examination in chief she testified that she followed the exercise advice of Dr. Chu and of her physiotherapist to the greatest extent possible.  However on cross examination she was vague and evasive about the extent to which she had followed this advice. She testified that she tried to do what was recommended but could not recall exactly. Currently she participates in pilates at a local facility 3 to 4 times per week. Her husband candidly acknowledged that she was not doing much exercise other than attending pilates. However the evidence concerning exercise does not allow me to derive sufficiently firm conclusions that would be necessary to conclude that the defendant has met its burden to establish a failure to mitigate in this respect.

[123]      A question is whether the plaintiff’s refusal to attempt to return to work and her reluctance to accept and failure to obtain full psychiatric treatment is rooted in her accident injuries, such that a deduction for failure to mitigate would not be appropriate. However there is no basis for such a finding in the medical or other evidence. The plaintiff is highly educated and intelligent. There is some evidence that she has experienced some cognitive difficulties but these are not severe. She displayed considerable intelligence in giving her evidence, especially in describing her previous work. I do not accept that the plaintiff was impaired in her rational decision-making capacity in relation to her career and her treatment…

[216]     Based on all of the circumstances of this case, including consideration of the cases cited to me my both counsel, in my view a fair and reasonable award for non-pecuniary loss is $140,000

[217]     I reduce this by 50% to $70,000 on the basis of failure to mitigate loss.

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