This car accident claimant had his injury claim reduced by 20% for failing to follow medical advice and abusing Percocet and cocaine, which interfered with his recovery.
The claimant was riding his motorcycle west on Marine Way in Burnaby, BC approaching a strip mall known as Market Crossing when a vehicle in the lane beside him changed lanes into his motorcycle. He was knocked to the ground and the vehicle crushed his left foot.
In reducing his claim for pain and suffering from $150,000.00 to $120,000.00 the judge reviewed the case law regarding failure to mitigate and had this to say:
[217] … It is not the court’s role to comment on the legality of the plaintiff’s self-medication, or the reasonableness of his distrust for psychologists, but to assess the deleterious consequences of these actions and apply the appropriate reduction of the plaintiff’s non-pecuniary damages accordingly.
[218] Given the above cases, a 20% reduction is appropriate given the plaintiff’s failure to pursue any psychological counselling, as recommended to him by three separate doctors, and by failing to at least take steps towards dealing with his Percocet and cocaine addiction as it impacted his physical and psychological MVA injuries, as recommended to him…(Lewis v. Gibson, 2018 BCSC 1713)
The burden is on the defendant, usually insured by ICBC, to prove that the claimant could have avoided all or a portion of his loss. In a personal injury case in which the claimant has not pursued a course of medical treatment recommended to him by doctors, the defendant must prove two things to have the claim reduced: (1) that the claimant acted unreasonably in eschewing the recommended treatment, and (2) the extent, if any, to which the claimant’s damages would have been reduced had he acted reasonably.
The judge went on the make an award of over $500,000 summarized as follows:
| 1. | Pain and Suffering | $120,000.00 |
| 2. | Loss of past income earning capacity | $45,000.00 |
| 3. | Loss of future income earning capacity | $300,000.00 |
| 4. | Loss of housekeeping capacity | $20,000.00 |
| 5. | Cost of future care | $26,703.50 |
| 6. | Out of Pocket Expenses | $3,284.52 |
| TOTAL | $514,988.02 |
Posted by Personal Injury Lawyer Mr. Renn A. Holness B.A. LL.B.