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Car Accident Injury Claimant Awarded over $1.4 million for Brain Injury


 
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, [1985] 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?

Tags: Brain Injury, icbc case examples, Pain and Suffering, Traumatic brain injury

2 responses to Car Accident Injury Claimant Awarded over $1.4 million for Brain Injury

  • Free VLC Player Download

    October 1, 2011 4:40am

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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 reduced  the award by 25% for failure to mitigate.  ICBC may well have offered to fund recommended treatment but the claimant may have made his own [...]

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