In an understated but significant reduction in the injury award Judge Verhoeven made the following comment about the failure to use antidepressant medication,
In this modern age such treatment does not have the stigma it once did, and I find that her refusal to take treatment is unreasonable and the defendant should not have to bear the cost of her refusal. Mullens v. Toor,2016 BCSC 1645.
In the typical personal injury case the defendants, including ICBC, bear the onus of establishing that the injury claimant failed to take reasonable steps that would likely have reduced her damages. The issue of mitigation often arise when the claimant fails to undergo certain medical treatment or therapies.
In determining the reasonableness of a refusal of medical treatment, the trier of fact will take into account the degree of risk to the plaintiff from the treatment, the gravity of the consequences of refusing it, and the potential benefits to be derived from it: Janiak v. Ippolito, [1985] 1 SCR 146, 1985 CanLII 62 (SCC), at para. 31 (cited to CanLII).
The Judge however failed to refer to paragraph 29 of Janiak which requires further inquiry:
It would appear from the authorities that as long as a plaintiff follows any one of several courses of treatment recommended by the medical advisers he consults he should not be said to have acted unreasonably.
The issue of failure to mitigate losses also arise in the context of a claimant’s failure to return to work. In Parypa v. Wickware, 1999 BCCA 88.
In summary the judge said the claimant ought reasonably have begun use of anti-depressant medication earlier than she did initially; She ought to have been treated by a psychiatrist; Better engagement with medical and psychiatric treatment would have also increased the chances of a successful attempt to return to work.
The award of $140,000 for pain and suffering was reduced by 50% as well the the claim for loss of earning capacity of $350,00.00. As the Judge went on to say,
[192] Had the plaintiff taken reasonable steps to return to work in the past and to obtain treatment, she would probably have been in much better condition now. In that scenario, she would have had little or no future loss of earnings. On the other hand, of course, on the other extreme, it is possible that had she made full efforts, her condition would be much as it is now. A 50% reduction for failure to mitigate the future loss of capacity loss is appropriate. Thus the net award for lost future earning capacity is $175,000.
This may not be the last we hear about this case!
Posted by Mr. Renn A. Holness, B.A. LL.B.
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