Reasons for judgement were released last week by the BC Supreme Court, Vancouver Registry, assessing damages for a concussive injury sustained in a motor vehicle collision.
In last week’s case (Abdalle v. British Columbia (Public Safety and Solicitor General)) the Plaintiff was injured in a 2007 intersection collision. The force of impact propelled the Plaintiff into his vehicle’s windshield resulting in a concussive injury, significant scarring and various soft tissue injuries.
The injuries largely improved in the following years but the Plaintiff was left with some residual symptoms in addition to his forehead scar. Madam Justice Ross assessed non-pecuniary damages at $50,000 (although this figure was then reduced to $27,500 for the Plaintiff’s failure to wear a seatbelt and further for his failure to mitigate his damages). In arriving at this figure the Court provided the following reasons:
In this case I have concluded as noted above that Mr. Abdalle suffered a serious laceration, concussion and soft tissue injury to his neck and back in the accident. He was left with a significant scar on his forehead. He suffered from nausea, dizziness, headache pain and stiffness in his neck and back as a result of his injuries. He was significantly disabled and largely bedridden from the time of the accident until September 2007, when he was able to return to work. He was not able to attend to functions of daily living such as cooking and household chores at this time and was unable to engage in the many activities that he had enjoyed before the accident. His sleep and mood were affected.
With the passage of time his symptoms improved. As he conceded in his examination for discovery, the dizziness was essentially resolved after a year. By October 2009 he was experiencing headaches perhaps twice a month and flare ups of neck pain every couple of months. I accept that he continues to experience periodic flare ups of neck and back pain and headache.
He was able to return to work in September 2007 and has been able to function at the workplace since that time. While he has not returned to his pre-accident level of activity, I find that the injuries he suffered in the accident do not and will not prevent him from taking part in any vocational or recreational activities. Upon a review of the cases cited by counsel and having regard to my findings concerning Mr. Abdalle’s injuries and their impact on his activities and the quality of his life, I assess non-pecuniary damages prior to reduction for mitigation and contributory fault at $50,000.
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:
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.
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’s refusal to follow the recommendations of his physicians was unreasonable…
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 “there is little authority on this issue”, 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 ‘pathological’ conditions.
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’s 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.
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 “capacity” 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.
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.
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…
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.
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When not writing the BC Injury Law Blog, Erik is the managing partner at MacIsaac & Company, based in Victoria, B.C. He is also involved with combative sports regulatory issues and authors the Combat Sports Law Blog.
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