How much an injury victim gets for pain and suffering after a car accident in ICBC claims and other personal injury cases can be reduced by the court for not following medical treatment. In this case, after suffering a car accident injury in which medication was initially taken with success and then abandoned for no good reason, the claimant unwisely ignored medical advice without any reasonable basis for doing so (Peacock v. Battel,2013, BCSC 958).
The first accident happened while driving a on a rural gravel road the claimants right front corner struck a British Columbia Hydro truck. When she attended the hospital, she complained of pain in the right side of her body, in her right knee, her jaw, her neck and her shoulders. She had been experiencing difficulty sleeping and suffered from anxiety. The second accident happened in Pitt Meadows when the claimants vehicle was rear ended.The claimant went to a medical clinic immediately after the second accident and again had trouble sleeping with pain in her right hip, leg, foot and short term memory loss.
The court assessed the claimant’s compensation for pain and suffering at $75,000 in part because a program of exercise will assist the claimant and with appropriate adherence to medical advice, the depression and low mood can be overcome. In many ICBC claims these costs can be recovered from ICBC as mandatory benefits.
In reducing the amount of the award by 20% for failure to mitigate the Judge pointed out, “This is not a case in which the medical advice was that a form of therapy would have been likely to prove fruitful if it had been employed. This is a case in which the recommended medication was initially taken with success and then abandoned for no good reason. In this case the plaintiff unwisely ignored medical advice without any reasonable basis for doing so.”
There is some legal debate in ICBC claims and and other injury cases as to whether mitigation is really a duty or whether it involves an analysis of causation or proximate cause. The trial judge in this case was clearly of the view that this obligation is a duty stating,
 The plaintiff, like all who find themselves in a position similar to hers, cannot refuse to comply with reasonable medical advice and then seek to visit the unhappy consequences of that refusal on a defendant tortfeasor. A plaintiff has an obligation to take reasonable steps to avoid losses that can be avoided. While the plaintiff has that duty, it is for the defendant to prove it has been breached. The burden on a plaintiff is not a heavy one particularly because it is a tortfeasor who caused the injury, and correspondingly the obligation on a defendant who asserts there has been a failure to mitigate is a substantial one. The plaintiff submits the obligation to mitigate is not significant when the award of damages is modest. I do not agree. The obligation exists in all injury cases.
Posted by Personal Injury Lawyer Mr. Renn A. Holness, B.A. LL.B.