Damages Reduced by 30% for Preferring Naturopathic Remedies Over Surgery in Shoulder Injury Claim
Reasons for judgement were released today discussing two ares of interest in the context of an ICBC injury claim; the non-pecuniary value of a shoulder injury and “failure to mitigate” for following naturopathic remedies instead of recommended surgery.
In today’s case (Hauer v. Clendenning) the Plaintiff was injured in a 2006 BC vehicle collision. The Plaintiff was a passenger in a vehicle involved in an intersection crash. The crash was “significant, causing extensive damage to both vehicles“. Fault was admitted by the Defendant focusing the trial on the value of the case.
- Discussion of Non-Pecuniary Damages for Plaintiff’s Shoulder Injury
The Plaintiff suffered various soft tissue injuries which improved by the time of trial. The Plaintiff’s most serious injury was a right shoulder injury which remained symptomatic by the time of trial.
The Court heard evidence from a number of expert physicians including orthopaedic surgeon Dr. Richardson who gave evidence that the Plaintiff has a rotator cuff injury to her right shoulder resulting in tendonitis and impingement. Her prognosis for full recover was “guarded“.
Mr. Justice Slade assessed the Plaintiff’s non-pecuniary damages (money for pain and suffering and loss of enjoyment of life) at $50,000. In arriving at this figure the Court made the following findings and provided the following analysis:
[72] It is not a matter of contention among the medical experts that the plaintiff sustained soft tissue injuries in the August 6, 2006 accident. These injuries were to the neck, shoulder, and back. ..
[75] The medical experts are all of the view that the plaintiff will benefit from injections in the shoulder area, that being the most problematic of the plaintiff’s injuries. Dr. Aitken and Dr. Richardson say that she may benefit from arthroscopic surgery on the shoulder…
[78] I accept the evidence of the lay witnesses that the plaintiff was active and fully able to perform the physical demands of her employment before the accident, and after the accident, is no longer as active or able to perform to the pre-accident level. The evidence of the plaintiff, the lay witnesses, and Dr. Richardson, establish a causal connection between the accident and the plaintiff’s ongoing shoulder pain, and establish, as fact, the contribution of injuries sustained in the accident to the present condition of her shoulder.
[79] The plaintiff’s shoulder pain has persisted, largely undiminished, from the time of the accident. ..
[82] I find that the accident is a significant contributing factor to her shoulder injury, and that the plaintiff has established causation on the “but for” test described in Resurfice Corp. v. Hanke, 2007 SCC 7, [2007] 1 S.C.R. 333…
[85] Considering these authorities and the factors set out by Kirkpatrick J.A. in Stapley v. Hejslet, 2006 BCCA 34 at paras. 45-46, 263 D.L.R. (4th) 19, leave to appeal ref’d [2006] S.C.C.A. No. 100, I award the plaintiff $50,000 in non-pecuniary damages.
- Failure to Mitigate:
Further to my previous articles on the subject, it is well established that the Court can reduce a Plaintiff’s award in a personal injury claim if a Plaintiff unreasonably fails to follow medical advice where the medical would have likely improved the injuries.
In today’s case the Defendant argued that the Plaintiff failed to mitigate her damages by not having injections and/or surgery on her shoulder injury. Mr. Justice Slade agreed with this submission and found that the Plaintiff failed to mitigate her damages by not following the advice of the orthopaedic surgeons and instead choosing naturopathic remedies. The Court reduced the Plaintiff’s damages by 30% as a result. Specifically Mr. Justice Slade held as follows:
[105] The defendant bears the burden of establishing that the plaintiff has failed to mitigate her loss, in this case that she failed to follow medical direction, and that had she followed that advice, she would have recovered further or faster: Janiak v. Ippolito, [1985] 1 S.C.R. 146.
[106] The plaintiff prefers naturopathic remedies. She was influenced by advice given by a friend on the effect of injections. A physician advised her, informally, that she may not benefit from surgery. On these bases, she declined to act on the recommendations of three well-qualified orthopaedic surgeons to take injections into the shoulder area, and to consider arthroscopic surgery. Dr. Richardson puts the percentage chance of improvement from arthroscopic surgery at between 70-80%.
[107] There are, of course, risks associated with surgery, though these seem minimal. If the plaintiff underwent surgery, there may be some losses during the recovery period.
[108] There will be a reduction of 30% of the amounts awarded for general damages, loss of income earning capacity, and cost of care due to the plaintiff’s failure to mitigate.