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Whiplash Award Reduced to $30,000 for failure to follow Medical Advice

cervical spine assessment
In this whiplash soft tissue injury case the claimant was injured in three motor vehicle accidents and fault had been admitted by the Insurance Corporation of British Columbia ICBC (Gupta v. ICBC et al, 2015 BCSC 608).  The judge however awarded the claimant $45,000 for pain and suffering but reduced it to $30,000 stating:

[the claimant] has failed to mitigate via adequate and planned physical exercise, physiotherapy and counselling so as to alleviate her conditions. There has not been an adequate explanation…as to why she has failed to follow the advice of Drs. [N] and [C] in this respect….Considering all of the injuries suffered by the plaintiff and the effect of the same upon her life, I award the sum of $45,000 in non-pecuniary damages, which sum is to be reduced by one-third due to a failure to mitigate, leaving a net award of $30,000.

In the first car accident the claimant was driving in Surrey when she was hit from behind by an unidentified vehicle. The claimant was a front seat passenger in the second accident on Highway #1 in Burnaby when her vehicle was hit on the right side by a vehicle which had suddenly changed lanes into the HOV lane. And the third accident occurred when the claimant was driving a mini-van approaching the driveway to her home which was located in a cul-de-sac. A neighbour was backing out of a driveway and backed into her vehicle, striking the driver’s side in a t-bone fashion.

Considering all of the medical evidence the judge accepted  the claimant suffered whiplash  soft tissue injuries to her neck and left shoulder, primarily caused by the second MVA. There was no evidence of a rotator cuff tear in the left shoulder or of any neurological damage in her left shoulder or arm. The injuries suffered in the last car accident were very minimal but likely exacerbated, in a minor way, the injuries suffered in the second MVA.

 In summary, the claimant was awarded: Pain and suffering of $30,000; Past income loss limited to the 28 days of lost work and to be calculated by the parties; Cost of future care of $7,211; and Out of pocket expenses totaling $3,643.

 Posted by Personal Injury Lawyer Mr. Renn A. Holness, B.A. LL.B.

Tags: Car Accident Claim, Failure to Mitigate, icbc case examples, ICBC Injury claim, Mitigation, Neck Pain, Pain and Suffering, Soft tissue injury, Whiplash

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