Plaintiff’s Damages Reduced by One Third for Failure to Follow Recommendations in ICBC Injury Case

In the recently published case of Hsu v. Williams, 2011 BCSC 1412, Mr. Justice Savage awarded $30,000 in general damages to a plaintiff injured in a motor vehicle accident in March 2007 at the intersection of Granville St. and 41 Ave. in Vancouver, BC.  In April 2010, the plaintiff saw Dr. John Armstrong, a medical physician with a Ph.D. in Neurology and Neurosurgery.  Dr. Armstrong diagnosed the plaintiff with chronic myofascial disorder in her neck and back and noted that this was likely a pre-existing soft tissue condition in the left shoulder and back that was aggravated by the accident.  The court also recognized that the plaintiff suffered “cognitive dysfunction” that lead her to believe her injuries “have a greater impact on her life and livelihood then they actually do”.

 

Failure to Mitigate in ICBC Injury Case

 

The court reduced the plaintiff’s award by one third because she had not followed the recommendations of Dr. Armstrong.  These included a supervised program of rehabilitative exercise, supervised stretching, a progressive program of supervised exercise, counselling with a clinical psychologist and a progressive walking program.  On this point, Justice savage said the following:

 

[46]  Dr. Armstrong’s report was introduced in evidence by the plaintiff.  Although Dr. Armstrong says that the opinions are not directives for future care, and that future care should be at the discretion of her treating physicians and other care providers, there are no opinions of these treating physicians or care providers in evidence.  So there is no evidence that those treatment recommendations should not have been carried out.

 

[47]  The importance of carrying out these recommendations is significant.  Dr. Armstrong opined that the longer chronic sacroiliac joint dysfunction persists, the less favourable is the chance for significant improvement.  Although his prognosis if the recommendations were carried out was guarded, in my view the plaintiff should have undertaken the recommendations by the witness she called to give evidence.  In the circumstances, the plaintiff has failed to mitigate her damages.  I would reduce the general damages award by one-third to account for this factor.

 

Ironically, the plaintiff had spent thousands of dollars of her own funds on therapies and treatments which were, ultimately, not proven to be required or helpful in the long term.

 

In addition, the court further found that most of the plaintiff’s expenses were treatment could not be recovered as special damages because the expenditures were not proven to be “reasonably necessary to address the plaintiff’s injuries”.  With respect to these expenditures, Justice Savage allowed one acupuncture treatment per month from the date of the accident to the report of Dr. Armstrong and awarded the plaintiff $2,590.

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