BC Injury Law and ICBC Claims Blog

Erik MagrakenThis Blog is authored by British Columbia personal injury lawyer Erik Magraken. Erik is a partner with the British Columbia personal injury law-firm MacIsaac & Company. He restricts his practice exclusively to plaintiff-only personal injury claims with a particular emphasis on claims involving orthopaedic injuries and complex soft tissue injuries. Please visit often for the latest developments in matters concerning BC personal injury claims and ICBC claims.

Erik Magraken does not work for and is not affiliated in any way with the Insurance Corporation of British Columbia (ICBC). Please note that this blog is for information only and is not claim-specific legal advice.  Erik can only provide legal advice to clients. Please click here to arrange a free consultation.

Posts Tagged ‘failure to mitigate’

No Failure to Mitigate Damages For Refusing Medical Marijuana

March 5th, 2014

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.

 


“Textbook Example of Failure to Mitigate” Leads to Over $100,000 of Stripped Damages

January 10th, 2014

It pays to take reasonable efforts to get better. ¬†Not only does it make good sense to take all reasonable steps to recover from injury for the sake of your well being but failing to do so can strip significant damages from a personal injury award. ¬†Reasons for judgement were released this week by the BC Supreme Court, New Westminster Registry, dealing with a “textbook” example of this.

In this week’s case (Maltese v. Pratap) the Plaintiff was involved in a 2008 collision. ¬†The Defendant admitted fault. ¬†The Plaintiff was injured which continued to cause problems by the time of trial and were expected to continue in the future. ¬†The court noted that the Plaintiff received “remarkably similar” treatment advice which he unreasonably refused to follow. ¬†The Court reduced the awarded damages by just over $100,000 and further stripped the Plaintiff of future care costs on the basis that “it is entriely unlikely” that the Plaintiff would follow the recommended treatments. ¬†In reaching this conclusion Mr. Justice Kelleher provided the following reasons:

[55]¬†¬†¬†¬†¬†¬†¬†¬†¬†The facts of this case represent a textbook example of a failure to mitigate.¬† There is a consensus among the professionals who assessed and treated the plaintiff that Mr.¬†Maltese needed to undertake a program of physical rehabilitation and fitness with a kinesiologist or personal trainer.¬† Their recommendations are remarkably similar.¬† Mr.¬†Maltese has chosen to ignore them…

[59]         I am satisfied that the first stage of the test in Gregory has been met: I have no difficulty concluding that Mr. Maltese, having all the information at hand that he possessed at the time, ought reasonably to have undergone the recommended treatment of active rehabilitation through a kinesiologist or personal trainer.

[60]         Among other reasons, Mr. Maltese submitted that because he felt worse after attending physiotherapy, he made a decision to not pursue an active rehabilitation program. I cannot accede to this argument. The medical evidence taken as a whole also establishes that, on a balance of probabilities, there would have been a significant improvement in the plaintiff’s condition or a reduction in his damages. 

[61]¬†¬†¬†¬†¬†¬†¬†¬†¬†On such a clear case, a reduction of 30% in the awards for non-pecuniary damages, wage loss after his return to work and loss of future earning capacity is appropriate…

[77]         In this regard, the plaintiff relies on the fact that Drs. Travlos, le Noble, Chan and Kokan all recommended an active rehabilitation program.  The plaintiff argued that there is a consensus among these physicians that he needs to recondition himself and would benefit from the assistance of a kinesiologist or personal trainer.

[78]         But there must be a likelihood that a plaintiff will incur costs before an award can be made under this head of damages.  I conclude that it is entirely unlikely that Mr. Maltese will avail himself of these services in the future.  After all, the plaintiff has been advised by medical professionals on numerous occasions to engage in active reconditioning.  He has not done so.  I conclude an award for cost future care costs in these circumstances is inappropriate: Izony v. Weidlich, 2006 BCSC 1315 at para. 74.


"It is Not for the Tortfeasor" To Dictate Timelines for a Plaintiff's Retirement

January 29th, 2013

Interesting reasons for judgement were released this week by the BC Supreme Court, Vancouver Registry, addressing mitigation of damages in a personal injury claim seeking compensation for reduced pension benefits.

In this week’s case (Wangert v. Saur) the Defendant died when his vehicle collided with a train operated by the Plaintiff. ¬†The Plaintiff suffered from Post Traumatic Stress Disorder and missed some time from work. ¬†The Plaintiff retired in 2012 and¬†sought¬†damages for a reduced pension¬†arguing¬†that had he not been¬†psychologically¬†injured by the collision he would have worked more hours thereby having greater¬†pensionable¬†earnings.

The Defendant argued that since, at the time of the Plaintiff’s¬†retirement¬†at age 55, he was able to work full time and had no residual¬†difficulty¬†from the Accident he failed to mitigate his damages by not working past his otherwise planned retirement in order to earn a greater pension. ¬†Mr. Justice Abrioux rejected this argument providing the following reasons:

[34]         In this case, I accept the plaintiff’s evidence that he had always planned to retire at the age of 55. He had spent many years working for CP Rail.

[35]         The defendant did not cite any legal authority supporting his position that a plaintiff could have mitigated losses by working past his or her planned retirement age. I was also unable to find any.

[36]¬†¬†¬†¬†¬†¬†¬†¬†¬†In my view, planning for retirement is a very important stage in a person‚Äôs life. When one has the opportunity to retire at a certain age, even though continuing to work remains available, the decision to retire is not entered into lightly. It is not for the tortfeasor to take the position that the plaintiff‚Äės failure to change his life plan due to an accident which occurred through no fault of his own, amounts to unreasonable conduct.


Lack of Financial Means Defeats "Failure to Mitigate" Allegations

January 11th, 2013

As discussed on numerous occasions, a Plaintiff who fails to take reasonable steps to aid in their own recovery can have their damages reduced for a ‘failure to mitigate’. ¬†In considering weather a Plaintiff’s failure to seek¬†treatment¬†is reasonable their personal circumstances are taken into account. ¬†It is well established that lack of funding can reasonably excuse a course of otherwise helpful¬†therapy.¬† ¬†Reasons for judgement were released this week by the BC Supreme Court, Vancouver Registry, further demonstrating this principle.

In this week’s case (Rozendaal v. Landingin) the Plaintiff was injured in two collisions. ¬†She was faultless for both. ¬†She suffered soft tissue injuries to her neck, shoulders and upper back which continued to the time of trial and were expected to carry on in the future. ¬†Non-Pecuniary damages of $40,000 were awarded.

The¬†Defendant¬†argued that the Plaintiff’s damages should be reduced due to her failure to carry on with physiotherapy. ¬†Madam Justice Holmes found that greater therapy indeed would have made a difference but given the Plaintiff’s circumstances her failure to attend was not¬†unreasonable. ¬† In dismissing the defendant’s arguments the Court provided the following reasons:

[66]         On the medical evidence, I find that Ms. Rozendaal likely could have improved to a greater extent and more quickly had she undertaken a focussed course of strengthening and conditioning therapy or training designed for her particular injuries, such as Dr. O’Connor outlined in his second report.  The various forms of massage Ms. Rozendaal undertook gave her relief from her pain, but, as Dr. O’Connor explained, passive therapies did not help rehabilitate the muscles which, ultimately, were causing that pain.

[67]         The question is whether Ms. Rozendaal acted unreasonably by failing to undertake the recommended therapies or programs.  I find that in her particular personal circumstances, she did not.  ..

[70]         As I find, Ms. Rozendaal’s life circumstances left her unable to fund any form of ongoing treatment or therapy.   From their early days together, she and Mr. Landingin have worked extremely hard to educate themselves for careers and to provide financial support and loving care for their young family.  It is clear from the evidence that life was not easy for them.  I have no difficulty accepting that other financial priorities displaced ongoing physiotherapy or active rehabilitation for Ms. Rozendaal, particularly since it seemed to her that massages from Mr. Landingin and exercises she did at home were just as helpful. 

[71]         As I find, Ms. Rozendaal was mistaken in this assessment.  However, it was only when Dr. O’Connor saw Ms. Rozendaal before preparing his second report (of January 18, 2012), and asked her to demonstrate the exercises she had been doing since he had seen her six months earlier, that he realized that he had not given his instructions specifically enough:  Ms. Rozendaal was doing light aerobic work and some gentle neck exercises, but no real strengthening.  Dr. O’Connor testified that because Ms. Rozendaal had evidently misunderstood his recommendation in the previous report, he described the recommended conditioning more explicitly in the second report.

[72]         The law does not require perfection in the pursuit of rehabilitation.  It requires instead that a plaintiff make efforts which are reasonable and sincere in the plaintiff’s own personal circumstances:  Gilbert at para. 203.

[73]         On this basis, in Tsalamandris v. MacDonald, 2011 BCSC 1138 at paras. 227-30, varied on other grounds 2012 BCCA 239, the Court found no failure to mitigate where the plaintiff was unable to pursue the recommended treatments because of life circumstances that included a pregnancy, the care of small children at home, and her inability to perform the recommended exercises properly without the help of a personal trainer.

[74]         I find similarly that Ms. Rozendaal’s efforts at rehabilitation were reasonable and sincere in her own personal circumstances.


Soft Tissue Injury Damages Round Up – The Kelowna Road Edition

August 1st, 2012

As regular readers of this blog know, I try to avoid ‘round up‘ posts and do my best to provide individual case summaries for BC Supreme Court injury judgements. ¬†Sometimes, however, the volume of decisions coupled with time constraints makes this difficult. ¬†After wrapping up holidays in the lovely City of Kelowna this is one of those times so here is a soft tissue injury round up of recent BC injury caselaw.

In the first case (Olynyk v. Turner) the Plaintiff was involved in a 2008 rear-end collision. ¬†Fault was admitted. ¬† ¬†He was 43 at the time and suffered a variety of soft tissue injuries to his neck and back. ¬†His symptoms lingered to the time of trial¬†although¬†the Court found¬†that¬†the Plaintiff¬†unreasonably¬†refused to follow his physicians advise with respect to treatment. ¬†In assessing non-pecuniary damages at $40,000 (then reduced by 30% to reflect the Plaintiff’s ‘failure to mitigate’) Mr. Justice Barrow provided the following reasons:

[83]I find that Mr. Olynyk suffered a soft tissue injury to his neck and low back. I¬†would describe the former as mild and the later as moderate. There is no necessary correlation between the amount of medication consumed, the frequency of visits to the doctor, or the nature of the attempts to mitigate the effects of one‚Äôs injuries and the severity of those injuries and their consequences. There may be many explanations for such a lack of congruity: a person may be particularly stoic or may have an aversion to taking medication for example. On the one hand, in the absence of such an explanation, when there is a significant disconnect between these two things, that can be a reason for treating self reports of pain and limitation with caution…

[87]Given that it is now three years post accident, I am satisfied that Mr. Olynyk’s pain is likely permanent, although as Mr. Olynyk told Dr. Laidlow in the fall of 2011, his symptoms improved in the years since the accident, inasmuch as his level of pain declined as did the frequency of more significant episodes. Leaving aside the issue of his pre-existing back problems, and in view of the authorities referred to above, I consider that an award of non-pecuniary damages of $40,000 is appropriate. In reaching this conclusion, I have taken account of the dislocation that the plaintiff’s loss of employment has caused him. That loss is greater than the mere loss of income that it occasioned and for which separate compensation is in order. The plaintiff had to move to a different community to take a job that he was physically able to do. That is a matter of some consequence.

[88]The next issue is the effect of the plaintiff’s pre-existing back problems. According to Dr. Laidlow because of the plaintiff’s spondylolisthesis, and given the heavy nature of his work, he likely would have experienced back problems similar to those he now experiences in 10 years even if he had not been involved in an accident.

[89]As noted above, such future risks or contingencies are taken into account through a combination of their likely effect and the relative likelihood of them coming to pass (Athey at para. 27). I find that there was a 60 percent likelihood that Mr. Olynyk would experience the same symptoms he now experiences in 10 years in any event. It is not appropriate to reduce the award for general damages by 60 percent to account for that likelihood because the pre-existing condition would not have given rise to symptoms and limitations for 10 years. Mr. Olynyk is now 47 years old. I think it reasonable to reduce the award for general damages to account for his pre-existing condition by 30 percent.

[90]The plaintiff is entitled to $28,000 in general damages ($40,000 less 30 percent). That amount must be further reduced to account for Mr. Olynyk’s failure to mitigate. The net award of non-pecuniary damages is therefore $22,400.

____________________________________________________________________

In the second case released this week (Scoffield v. Jentsch) the Plaintiff was involved in a 2009 collision on Vancouver Island. ¬†Although the Defendant admitted fault there was “a serious dispute between the plaintiff and the defendant as to the severity of the force of impact“.

Mr. Justice Halfyard noted several ‘concerns about the Plaintiff’s credibility‘ and went on to find that the impact was quite minor finding as follows:

[201]I find that, after initially coming to a full stop, the defendant’s vehicle was moving very slowly when it made contact with the rear bumper of the plaintiff’s car. The plaintiff’s car was not pushed forward. The damage caused by the collision was minor. The force of the impact was low. The defendant backed his car up after the collision, and the bits of plastic picked up by the plaintiff some distance behind her car, fell away from his car as he was backing up. I do not accept the plaintiff’s estimate that the closest pieces of plastic on the roadway were eight feet behind the bumper of her car.

Despite this finding and the noted credibility concerns, the Court found that the Plaintiff did suffer soft tissue injuries to her neck and upper back and awarded non-pecuniary damages of $30,000.  In doing so Mr. Justice Halfyard provided the following reasons:

[202]The defendant admits that the plaintiff sustained injury to the soft tissues of her neck, upper back and shoulders as a result of the collision of April 9, 2009. I made that finding of fact. But the plaintiff alleges that the degree of severity of the injury was moderate, whereas the defence argues that it was only mild, or mild to moderate in degree…

[221]I find that, from April 16, 2009 until August 9, 2009, the pain from the injury prevented the plaintiff from working. After that, she was able to commence a gradual return to working full-time, which took a further two months until October 10, 2009. For the first four months after the accident, the pain from the injury prevented the plaintiff from engaging in her former recreational and athletic activities. She gradually resumed her former activities after that time. I find that, by the spring of 2010, the plaintiff had substantially returned to the level of recreational and athletic activities that she had done before the accident. After that time, any impairment of the plaintiff‚Äôs physical capacity to work or to do other activities was not caused by the injury she sustained in the accident on April 9, 2009…

[226]The plaintiff must be fairly compensated for the amount of pain and suffering and loss of enjoyment of life that she has incurred by reason of the injury caused by the defendant’s negligence. In light of the findings of fact that I have outlined above, I have decided that the plaintiff should be awarded $30,000.00 as damages for non-pecuniary loss.

______________________________________________________________________

(UPDATE March 19, 2014 - the BC Court of Appeal overturned the liability split below to 75/25 in the Plaintiff’s favour)

In this week’s third case, (Russell v. Parks) the pedestrian Plaintiff was injured in a parking lot collision with a vehicle. ¬†The Court found that both parties were to blame for the impact but the Plaintiff shouldered more of the blame being found 66.3% at fault.

The Plaintiff suffered a fracture to the fifth metacarpal of his right foot and a chronic soft tissue injury to his knee.  The latter injury merged with pre-existing difficulties to result in on-going symptoms.  In assessing non-pecuniary damages at $45,000 (before the reduction to account for liability) Mr. Justice Abrioux provided the following reasons:

[63]I make the following findings of fact based on my consideration of the evidence both lay and expert as a whole:

(a)¬†¬†¬†¬†¬† the plaintiff‚Äôs ‚Äúoriginal position‚ÄĚ immediately prior to the Accident included the following:

·being significantly overweight and deconditioned;

·having a hypertension condition which had existed for many years;

·asymptomatic degenerative osteoarthritis to both knees, more significant to the right than the left; and

·symptomatic left foot and ankle difficulties.

(b)      prior to the Accident, the plaintiff’s weight and deconditioning, together with the left foot and ankle difficulties caused him to live a rather sedentary lifestyle. Although he was able to work from time to time and participate in certain leisure activities, these were lessening as he grew older.

(c)      the Accident did not cause the degenerative osteoarthritis in the right knee to become symptomatic. It did, however, cause a soft-tissue injury which continued to affect the plaintiff to some extent at the time of trial.

(d)      the plaintiff’s ongoing difficulties are multifactoral. They include:

·his ongoing weight and conditioning problems. Although Mr. Russell’s pre-Accident weight and lack of conditioning would likely have affected his work and enjoyment of the amenities of life even if the Accident had not occurred, the injuries which he did sustain exacerbated that pre-existing condition;

·the plaintiff’s pre-existing but quiescent cardiac condition would have materialized the way it did even if the Accident had not occurred. This condition would have affected his long term day-to-day functioning including his ability to earn an income;

·notwithstanding this, the injuries sustained in the Accident, particularly the right knee, continue to affect his ongoing reduced functioning. This will continue indefinitely, to some degree, although some weight loss and an exercise rehabilitation program will likely assist him;

·an exercise and weight loss program would have been of benefit to the plaintiff even if the Accident had not occurred.,,

[73]From the mid range amount of approximately $60,000 I must take into account the plaintiff’s original position and the measurable risk the pre-Accident condition would have affected the plaintiff’s life had the Accident not occurred. Accordingly, I award non pecuniary damages in the amount of $45,000.

______________________________________________________________________________________

In the final case (Hill v. Swayne) the 35 year old Plaintiff was involved in a 2009 collision. ¬†Fault was admitted by the Defendant. ¬†The Plaintiff sustained soft tissue injuries to his neck and back. ¬† The Court noted some reliability issues with the Plaintiff’s evidence and found his collision related injuries were largely resolved by the time of trial. ¬†In assessing non-pecuniary damages at $20,000 Mr. Justice Armstrong provided the following reasons:

[68]Mr. Hill suffered a neck strain and lumbar strain and received 13 physiotherapy treatments ending February 2, 2010. He was absent from work from December 14, 2009 to January 4, 2010..

[74]I accept that an injury of the type suffered by Mr. Hill was particularly troublesome in light of the heavy work in his role as a journeyman/foreman roofer. A back injury to a person in his circumstances, even if not disabling in itself, would require extra care and watchfulness on the job to ensure that the injury is not exacerbated. In considering the criteria in Stapely, it is significant that Mr. Hill, who was a heavy lifting labourer, injured his back and that the injury has lingering effects. The injuries have minimally impacted his lifestyle, and he has dealt stoically with his employment.

[75]The severity of his pain was modest and the extent to which the duration of his discomfort was related to the accident is uncertain. However, I accept that there is some connection between the collision and his ongoing complaints.

[76]I have considered various cases cited by counsel and additionally referred to the Reichennek case. Although comparisons are of some assistance, I am to focus on the factors set out by the Court of Appeal and the specific circumstances of the plaintiff in this particular case. In the final analysis, I would award the plaintiff non-pecuniary damages of $20,000.


Mitigation of Damages and Chronic Obesity

April 4th, 2012

When a Plaintiff fails to take reasonable steps to recover from injury their right to compensation can be reduced accordingly.  Reasons for judgement were released yesterday addressing this topic in the context of pre-existing obesity.

In yesterday’s case (Deligilgio v. British Columbia (Puclic Safety and Solicitor General)) the Plaintiff suffered a back injury as a result of a 2009 collision. ¬†The Plaintiff struggled with obesity. ¬†The evidence suggested that weight loss could help reduce the Plaintiff’s back symptoms. ¬†The Defendant argued that the Plaintiff’s damages should be reduced due to the Plaintiff’s failure to lose weight.

Madam Justice Gropper rejected this argument finding the Plaintiff made “contextually reasonable and sincere efforts” to deal with his weight issues. ¬†In¬†rejecting¬†the Defendant’s¬†argument¬†the Court provided the following sensible reasons:

[87] Once the plaintiff establishes that the defendant is liable for his injuries, the burden shifts to the defendant. In order to prove that the plaintiff did not meet his duty to mitigate, the defence must prove that he acted unreasonably and that reasonable conduct would have reduced or eliminated the loss. Whether the plaintiff acted reasonably is a factual question: Gilbert v. Bottle, 2011 BCSC 1389 at para. 202. Gilbert continues at para. 203:

A relevant circumstance in cases such as this is the plaintiff’s personality and condition before and after the accident. The law does not require a plaintiff to do that which cannot be controlled, nor does it require perfection in the pursuit of rehabilitation. In addition, the defendant must take the victim as found, which may affect what is to be reasonably expected. For example, a person who has struggled with life-long obesity may not be expected to lose substantial weight to discharge the duty to mitigate, even though weight loss would assist recovery. What the law requires is that the plaintiff makes contextually reasonable and sincere efforts to limit his or her damages and loss [citations omitted].

[emphasis added]

[88] The evidence is clear that Mr. Del Giglio has struggled with lifelong obesity. He has attempted to lose weight in accordance with his doctor’s advice and has been somewhat successful. The plaintiff asserts that with assistance, including physiotherapy, kinesiology, the healthy heart program, a dietician and a gym membership he will likely lose weight and build his core strength.

[89] I find that Mr.¬†Del Giglio has made ‚Äúcontextually reasonable and sincere efforts‚ÄĚ to lose weight, but would benefit considerably from professional assistance. I disagree with the defendants that his damages should be reduced to reflect his reflected failure to mitigate. The defendants have not proven a failure to mitigate.


Failure to Obtain Injections and Mitigation of Damages

February 28th, 2012

Reasons for judgement were released recently by the BC Supreme Court, Vancouver Registry, discussing whether the failure to follow through with steroid injections to treat a shoulder injury should result in mitigation of damages in a personal injury claim.

In the recent case (Lim v. Anderson) the Plaintiff suffered an impingement syndrome following a rotator cuff injury sustained in a collision. ¬†In the course of recovery she had a steroid injection which provided temporary relief. ¬†Her surgeon suggested that the Plaintiff could have further injections although she chose not to follow through with this advice. ¬†The Defendant argued the Plaintiff’s damages should be reduced due to this choice. ¬†Madam Justice Fenlon rejected this argument and provided the following reasons:

[18] A preliminary issue I must decide before assessing damages is whether the plaintiff has failed to mitigate her damages. The defendants must prove that the plaintiff failed to follow recommended treatment by a qualified practitioner that could have overcome or reduced her current or future problems: Papineau v. Dorman, 2008 BCSC 1443. The applicable standard is reasonableness.¬†The defendants must demonstrate that the plaintiff unreasonably refused to follow the practitioner‚Äôs recommendations…

[23] Here too, while Dr.¬†Yu listed further injections or surgery as possible further treatments, he did not opine that they would fix the plaintiff‚Äôs problems with her shoulders. The injections offered at least temporary relief. The first and only one the plaintiff underwent gave her two months without pain. The plaintiff described the pain relief as ‚Äúlike a miracle‚ÄĚ.

[24] It can be implied from the location of the space into which the steroid medication has to be injected, from Dr. Yu’s evidence and from Ms. Lim’s decision not to repeat it every two months despite the relief that followed, that the needle itself is unpleasant. Further, Dr. Yu acknowledged that injections are not always successful and that patients have to balance the pain of the injection against the pain without it. Surgery carries with it risks and time off work.

[25] A plaintiff is only required to do what is reasonable, and I do not find to be unreasonable Ms. Lim’s decision to decline further injections and surgery and to instead use pain medication to control her symptoms.

This judgement can be contrasted with this 2010¬†decision where a Plaintiff’s damages were¬†reduced¬†by 30% for choosing to follow naturopathic treatment instead of injections/surgery to treat a shoulder injury.


Mitigation of Damages and "Sincerely Held Religious Beliefs"

January 31st, 2012

As previously discussed, if a person fails to take reasonable steps to mitigate their damages following a personal injury the compensation they are entitled to is reduced accordingly.

There are some clear examples where a person will not be penalized for failing to mitigate their damages such as when they are financially unable to follow their doctor’s advice. ¬†But what about pre-existing religious views? ¬†Can a person be penalized by a damage reduction for failing to follow medical advice where their refusal to do so was based on a religious belief? ¬†Reasons for judgement were released this week by the BC Supreme Court, Vancouver Registry, discussing this interesting topic.

In this week’s case (Abdalle v. British Columbia (Public Safety and Solicitor General)) the Plaintiff suffered a head injury when he was struck at an intersection by an RCMP cruiser. ¬†Fault for the crash was admitted.

In the course of recovery the Plaintiff failed to follow various suggestions made by his medical practitioners. ¬†The Plaintiff argued his damages should not be reduced as this failure was based on religious beliefs. ¬†Madam Justice Ross did not address the issue head on as she was not satisfied that the Plaintiff’s decisions were based on “sincerely¬†held religious or spiritual objection“. ¬†Despite this finding the Court made the following observation about this little tested area of law:

[71] In addition, counsel submits that Mr. Abdalle has spiritual and religious objections to drug use. Counsel submits that adherence to a sincerely held religious belief should not be considered a failure to mitigate damages. In counsel’s submission this should be an application of the principle of tort law that the tortfeasor takes the victim as he finds him.

[72] The medical evidence establishes that the recommended treatments would likely have assisted Mr.¬†Abdalle, that there were no contraindications in his case and that the risks were minimal. Accordingly, unless Mr.¬†Abdalle’s spiritual objections provide a reason to refuse treatment, I conclude that Mr.¬†Abdalle‚Äôs refusal to follow the recommendations of his physicians was unreasonable…

[75] It appears that the particular question of whether pre-existing religious beliefs would constitute a reasonable basis for a refusal of medical treatment has not been addressed in this jurisdiction. Jamie Cassels and Elizabeth Adjin-Tettey wrote in¬†Remedies: The Law of Damages, at pp.¬†292 and 393 that ‚Äúthere is little authority on this issue‚ÄĚ, and cite two American decisions as guidance. Neither of these cases have been cited in Canadian jurisprudence. Moreover, from¬†Janiak¬†it is clear that the American position on this issue takes subjective attributes into consideration to a greater degree than in Canada (Janiak, p.¬†160). Cassels and Adjin-Tettey opine at p.¬†392 that:

According to the Janiak test, where a medical treatment is otherwise obviously required, religious or ethical objections would not provide an excuse from mitigating unless those objections rendered the plaintiff incapable of choice or could be assimilated to ‚Äėpathological‚Äô conditions.

[76] Ken Cooper-Stephenson also explored this topic in Personal Injury Damages in Canada and expressed a different view. He stated at p. 876 that:

[l]f a pre-existing religious belief or cultural practice inhibits or prevents the plaintiff‚Äôs capacity to choose a certain form of treatment…then it is almost certain that the plaintiff will not be adjudged unreasonable in the refusal… Defendants take their plaintiffs as they find them with respect to their religion, their culture, and their socio-economic setting.

He does not, however, provide any Canadian authority in support of this proposition.

[77] Professor Cooper-Stephenson also argues that there is a move towards subjectivism, with one approach including religious belief and cultural practice within the notion of ‚Äúcapacity‚ÄĚ fromJaniak. He says, at p.¬†879, that as for religious belief and cultural practice:

…their recognition as fundamental constitutionally-protected interests in the¬†Canadian Charter of Rights and Freedoms¬†almost certainly requires that they be respected in post-action choices for the purposes of the duty to mitigate.

[78] There are two questions to be addressed in relation to this issue. The first is whether, to what extent, and under what circumstances a religious or cultural belief will be taken into consideration in addressing the plaintiff’s duty to mitigate. As noted above, it appears that the answer to this question may not be settled in Canadian jurisprudence. The second question is whether in the particular case, the plaintiff’s failure to follow a recommended course of treatment is the result of adherence of a religious or cultural belief or practice.

[79] In my view, this is not the case to make a determination with respect to the first question because I have concluded that the factual foundation is simply not made out for the Court to conclude that the reason for the refusal of treatment was a sincerely held religious or spiritual objection on the part of Mr.¬†Abdalle…

[81] In the result, I am satisfied that Mr. Abdalle’s refusal to take the Nortriptyline prescribed by Dr. Dhawan and his failure to follow the recommendation to take facet block injections was not the product of a religious or spiritual objection. In addition, I find Mr. Abdalle’s failure to continue with swimming, to become more active, to attend a further course of physiotherapy, to take the Nortriptyline as prescribed and the facet block injections as recommended was unreasonable in all the circumstances and in breach of his duty to mitigate.


Videotape Evidence "Of Some Assistance" in Impacting Personal Injury Claim

January 2nd, 2012

As previously discussed, video surveillance is a reality in personal injury litigation and surveillance depicting a Plaintiff acting inconsistently with their evidence can impact an assessment of damages.  Reasons for judgement were released last week by the BC Supreme Court, Vernon Registry, demonstrating surveillance evidence in action.

In last week’s case (Wilkinson v. Whitlock) the Plaintiff was injured in a 2007 collision in Vernon, BC. ¬†The Defendant drove through a red light and was found fully at fault for the crash. ¬†The Plaintiff suffered from back problems as a result of the collision. ¬†In the course of trial the Plaintiff testified as to the effects of these injuries. ¬†ICBC introduced video surveillance evidence which gave the impression “of an individual less limited than (the Plaintiff’s) evidence at trial and on discovery would lead one to conclude“. Mr. Justice Barrow provided the following reasons considering this evidence:

[16] There is reason to approach the plaintiff’s evidence with caution. She was defensive and evasive in cross-examination. I accept that anxiety may explain her defensive posture, but it does not account for her tendency not to answer questions directly. I do not, however, take much from these circumstances.

[17] As to the videotape evidence, it is of some assistance. The plaintiff was videotaped in January and February of 2008, May of 2009, and June and October of 2010. The plaintiff‚Äôs left hip and groin became, on her description, excruciatingly painful for no apparent reason when she was shopping. Although Ms.¬†Wilkinson could not recall the date of this event, I suspect it was likely in the fall of 2008. Ms.¬†Wilkinson testified that although the pain in her hip or groin varies, it often causes her ‚Äúto waddle‚ÄĚ when she walks as opposed to walking with a normal gait. On examination for discovery she agreed that it caused her to waddle most of the time. She said that it was a particular problem when she walked after driving.

[18] The January and February 2008 videotape evidence is of little assistance Рthe recordings are brief and do not show the plaintiff walking to any extent. The May 2009 videotape evidence is much more extensive. On May 19, 2009 the plaintiff was at a gas station purchasing flowers. To my eye, her gait appeared normal. On June 14, 2009 the plaintiff was videotaped while at a garden centre, and again her gait appeared normal. A year later, on June 15, 2010, there is videotape of her walking. There is no apparent limp but she does appear stiff and careful in the way she moves. On June 17, 2010 Ms. Wilkinson was videotaped walking to her car with a grocery cart full of groceries. She was captured loading the groceries into the hatchback of her vehicle. She did all of that without apparent limitation. On June 19 of that year she purchased a three or four foot tall house plant which she loaded and unloaded from her car, again without apparent limitation. Finally, there is a lengthy videotape of her on June 19, 2010 at a garden centre with Mr. Bains and her daughter. She is captured squatting down, standing up, and walking about the store without noticeable limitation. In summary, the videotape reveals some minor stiffness or limitation on some occasions. There are also occasions when she appeared to have little or no visible limitation. Generally, the impression left by the videotape evidence is of an individual less limited than Ms. Wilkinson’s evidence at trial and on discovery would lead one to conclude.

  • Mitigation of Damages

This case is also worth reviewing for the Court’s application of the mitigation principle. ¬†Mr. Justice Barrow found that the Plaintiff was prescribed therapies that she failed to follow and these would have improved the symptoms. ¬†The Court did not, however, reduce the Plaintiff’s damages finding that it was reasonable for her not to follow medical advise given her financial circumstances. ¬† ¬†Mr. Justice Barrow provided the the following reasons:

[50] Returning to the principles set out in Janiak, and dealing with the second one first, I am satisfied on a balance of probabilities that continued physiotherapy at least during 2008 would have reduced some of the plaintiff’s symptoms and increased her functionality. Further, I am satisfied that the supervised exercise program that Mr. Cooper recommended would have yielded ongoing benefits. I reach this conclusion because Ms. Wilkinson did benefit from both Mr. Saunder’s and Mr. Cooper’s assistance. There is no reason to think those benefits would not have continued and perhaps provided further relief.

[51] The more difficult issue is whether it was unreasonable for the plaintiff to not have followed up on these therapies. She testified that it was largely due to a lack of financial resources. I accept her evidence in that regard. She was in the midst of renovations which were costly. In addition she had lost the assistance that Mr. Harrison was to have provided. The renovations were also time consuming and physically taxing. Further, she underwent a very difficult separation from Mr. Harrison which extracted both a financial and emotional toll. In all these circumstances I am not persuaded that the defendant has established that it was unreasonable for the plaintiff not to pursue a fitness regime more diligently than she did. Most of the impediments to the pursuit of such a program will be no longer exist once this trial is over. I will address the implications of that when dealing with the damages for future losses.


1/3 Damage Reduction For Plaintiff's "Failure to Mitigate"

October 28th, 2011

Reasons for judgement were released this week by the BC Supreme Court, Vancouver Registry, reducing a Plaintiff’s damages following a motor vehicle collision for failure to follow medical advice.

In this week’s case (Hsu v. Williams) the Plaintiff was injured in a 2007 rear-end collision. ¬†The Plaintiff suffered from chronic¬†pre-existing pain. ¬†The Court accepted that the collision aggravated this condition and further that the collision caused a sacroiliac joint injury. ¬† Mr. Justice Savage assessed the Plaintiff’s non-pecuniary damages at $30,000 then reduced this award by 1/3 for the Plaintiff’s ‘failure to mitigate’. ¬†In doing so the Court provided the following reasons:

[42] In Graham v. Rogers, 2001 BCCA 432 (application for leave to appeal dismissed, [2001] S.C.C.A. No. 467), Rowles J.A.(Huddart J.A. concurring) said at para. 35:

Mitigation goes to limit recovery based on an unreasonable failure of the injured party to take reasonable steps to limit his or her loss.¬† A plaintiff in a personal injury action has a positive duty to mitigate but if a defendant’s position is that a plaintiff could reasonably have avoided some part of the loss, the defendant bears the onus of proof on that issue.¬†¬†Red Deer College v. Michaels(1975), [1976] 2 S.C.R. 324 at 331, 57 D.L.R. (3d) 386 at 390, and¬†Asamera Oil Corp. v. Sea Oil & General Corp.¬†(1978), [1979] 1 S.C.R. 633, 89 D.L.R. (3d) 1, provide support for that proposition.¬† In this case, the appellant argues that the respondent did not meet the onus of proof by showing or establishing that the appellant could reasonably have avoided his income or employment losses.

[43] In his very thorough report, Dr.¬†Armstrong gave treatment recommendations.¬† Although he applied a caveat, that ‚Äúmy remarks are my opinions and should not be understood as directives for the provisions of Ms.¬†Hsu‚Äôs care‚ÄĚ as that would be ‚Äúat the discretion of her treating physicians and other care providers‚ÄĚ, his report is the only medical opinion before the court.¬† Those recommendations included (1)¬†a focused and carefully supervised program of rehabilitative exercise aimed at correcting her sacroiliac joint problem; (2)¬†minimizing passive therapies; (3)¬†supervised stretching and posture improvement under the guidance of a physiotherapist; (4)¬†a progressive program of exercise under the supervision of a physiotherapist to strengthen her core muscles; (5)¬†counselling sessions with a clinical psychologist familiar with chronic pain management; (6) a progressive walking program; and (7)¬†time off work to pursue rehabilitation.

[44] The plaintiff has largely not followed these recommendations.  There is no evidence, for example, that she embarked on a supervised program of rehabilitative exercise, counselling sessions, or has worked on stretching and posture improvement under a professional’s guidance.  She did not embark on a progressive program to strengthen core muscles.  There is no evidence that she has sought out a clinical psychologist to assist her in chronic pain management.  Hsu did not take time off work to pursue rehabilitation.  Hsu also continued with, and seeks compensation for, continuing passive therapies.

[45] For example, Hsu claims as special damages acupuncture treatments covering a period from March¬†2007 to June¬†5, 2011 ($1,050); massage therapy treatments from 2008-2010 ($1,419); massage treatments in Taiwan ($13,150); massage treatments and a one year gym pass paid for in 2010 ($1,800); acupressure and acupuncture treatments in 2011 ($670.24); undescribed ‚Äúrehabilitation treatments‚ÄĚ ($760); and various prescription medications ($194.72).

[46] Dr. Armstrong’s report was introduced in evidence by the plaintiff.  Although Dr. Armstrong says that the opinions are not directives for future care, and that future care should be at the discretion of her treating physicians and other care providers, there are no opinions of those treating physicians or care providers in evidence.  So there is no evidence that those treatment recommendations should not have been carried out.

[47] The importance of carrying out those recommendations is significant.  Dr. Armstrong opined that the longer chronic sacroiliac joint dysfunction persists, the less favourable is the chance for significant improvement.  Although his prognosis if the recommendations were carried out was guarded, in my view the plaintiff should have undertaken the recommendations by the witness she called to give evidence.  In the circumstances, the plaintiff has failed to mitigate her damages.  I would reduce the general damages award by one-third to account for this factor.

For more recent BC case summaries addressing failure to mitigate you can click here to access my archived posts and here for more recent case summaries addressing pain and suffering awards for sacroiliac joint injuries.


 

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