This car accident injury case was sent back for a new trial because the Court of Appeal found that the  trial judge was wrong in reducing the injury claimants award for failure to following medical advice (Wahl v. Sidhu, 2012 BCCA 111). I reviewed the original decision in which the injury claimant was travelling  on 72nd Avenue, in Surrey, B.C. and my article focused on the judges reluctance to compensate for personal injury lawyer funded treatment. Clearly the trial decision was wrong and cannot be relied upon.
The BC Court of Appeal rightly pointed out that the judge’s reasons confuse the issues of causation and mitigation. As stated in Yoshikawa, “any question of mitigation, or failure to mitigate, arises only after causation has been established” (para. 12, subparagraph7).  By using failure to mitigate to limit the period in which causation was found to be established, the trial judge improperly merged the two issues.  Such confusion of the issues is evident in para. 250, which deals with the appellant’s failure to undergo the needle test.  It is also manifest in the tension between the clear findings of failure to mitigate regarding the appellant’s non-attendance at the pain clinic and his failure to undergo a needle test (paras. 247 and 250, respectively), and the judge’s refusal to reduce non-pecuniary damages on the basis of failure to mitigate in paras. 257-258.  Having cut off damages at June 2009 for failure to mitigate, the judge refused to further reduce damages on this basis because he considered the delay in recovery to be attributable to the appellant’s “psychological overlay”, which he found was “directly related to the accident”.
Given the the errors with respect to mitigation and causation the interests of justice plainly required a new trial for this car accident injury claim.   As a result the Court of Appeal allowed the appeal and ordered a new trial.
Posted by personal injury lawyer Mr. Renn A. Holness

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