In this 17 year old victim car accident brain injury case(Cikojevic v. Timm, 2010 BCSC 800 )the claimant was the middle-seat passenger in the defendant’s compact truck when he drove it off the road and into a tree. The force of the collision threw her head into the windshield hard enough to star it. The defendant agreed that the injury claimant suffered a mild traumatic brain injury (“MTBI”) and soft tissue injuries as a result of the accident. The Court however, reduced the award for pain and sufferring by 5% because the injury claimant did not act reasonably in not pursuing psychological treatment as recommended by Dr. Parhar or following up with him regarding her antidepressants.
In personal injury cases of this nature an injured victim has a “duty” to try to get better and cannot recover losses that could have avoided through reasonable efforts. In Janiak v. Ippolito,  1 S.C.R. 146 at 159, 16 D.L.R. (4th) 1, Wilson J., speaking for the Court, explained that the standard for determining whether a plaintiff has mitigated their losses, is an objective one:
…non-pathological but distinctive subjective attributes of the plaintiff’s personality and mental composition are ignored in favour of an objective assessment of the reasonableness of his choice. So long as he is capable of choice the assumption of tort damages theory must be that he himself assumes the cost of any unreasonable decision.
It is important to consider in addition that ICBC , has the insurer, has to prove the unreasonable lack of treatment prolonged recovery. At the time of this post this case was good law and had not been considered or overturned.
Posted By Vancouver Personal Injury Lawyer Mr. Renn A. Holness, B.A. LL.B. Issue: Should injury claimants be punished for failing to follow recommended treatment?
2 responses to Car Accident Injury Claimant Awarded over $1.4 million for Brain Injury
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ICBC Gets Personal Injury Award Reduced as Claimant not trying Hard Enough « Holness Law Group Blog
December 15, 2010 6:03am
[...] loss by not exercising consistently and getting active. The judge reducedÂ the award by 25% for failure to mitigate.Â ICBC may well have offered to fund recommended treatment but the claimant may have made his own [...]
"Renn A. Holness is a gifted lawyer and author to over 1000 legal blog articles. Married father of two daughters, son of a neurosurgeon and founder of Holness Law Group."
Jacqueline Small is diligent, professional, and compassionate. She went above and beyond when I was injured in a motor vehicle accident. Anytime I had questions she would respond quickly and always seemed to be one step ahead. I called several accident law firms and none were as knowledgeable and sincere as Jacqueline. Highly recommended!
I would totally recommend this law group. Renn handled my case with the utmost professionalism kept me informed throughout and explained in easy to understand layman's terms. I am very happy with how things worked out. I would highly recommend if you ever need a lawyer to contact him. Great job and a big thank you to all.
Over a period of 4 years Jacqueline Small guided me throughout the entirety of my personal injury claim after a motor vehicle accident left me with chronic pain. My experience was pleasant, professional, thorough, and communication was always open. I was treated with care like a person and not just a case. Jacqueline was with me every step of the way until we reached a settlement with the insurance company. 10/10 I would recommend to any friends or family.