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MacLean Personal Injury- Best Vancouver Personal Injury Advice

The MacLean Personal injury lawyers are pleased to provide the best Vancouver personal injury advice and legal summaries. The best Vancouver personal injury advice our top MacLean personal injury and car accident lawyers can give you is for you to take steps to get immediate medical help after you are injured in an ICBC car accident case. Call our Vancouver personal injury lawyers across Bc toll free at 1-877-602-9900 or contact us here.

MacLean Personal Injury lawyers Lorne MacLean, QC, Spencer MacLean and law student Fraser MacLean

MacLean Personal Injury lawyers Lorne MacLean, QC, Spencer MacLean and law student Fraser MacLean Best Vancouver Personal Injury advice

Secondly, the next best Vancouver personal injury advice we can give is that you should immediately hire a highly experienced Vancouver personal injury lawyer like the Vancouver personal injury lawyers at MacLean Law. Failure to do either of these two steps and ignoring our best Vancouver personal injury advice will lead to a poor recovery of both your health and the amount of money you receive. Our MacLean Personal Injury lawyers will ensure you maximize the speed and extent of your recovery while we tenaciously and firmly pursue the maximum money settlement for you.

A recent case  of  Castro v Krause dealt with how an injured Plaintiff who suffered mental health issues after an accident had her damage award reduced by 20 percent because she failed to follow doctor’s recommendations for treatment and medication.

Here is why:

[99]        Having stated the above, however, it seems to me Ms. Castro must bear some responsibility for addressing her own wellness. Even had Dr. Mathias been more direct in advising Ms. Castro to take the medication ultimately the choice was Ms. Castro’s. Based on the evidentiary record I am of the view Ms. Castro would not have followed any medical advice which might interfere with her ability to work. It would be unfair to the defendants to bear the full cost of a treatable medical condition which goes untreated, particularly after a specialist had become involved and made recommendations as Dr. Ganesan has. The evidence is quite clear that had Ms. Castro embarked on a prescribed course of anti-depressant medication along with counselling her prognosis for improvement was good. In my view Ms. Castro’s non-pecuniary damages should be reduced by 20%.

What Is The Law On When You Will Lose Money By Your Own Actions After A Vancouver Personal Injury?

Here is our Best Vancouver personal injury advice on how not to lose money by failing to mitigate your damages. Mitigate means you have a responsibility to faithfully do your part to get better after an injury.

Ms. Castro’s Mitigation

[90]        The defendants say the court should reduce Ms. Castro’s award for non-pecuniary loss by 30% to account for her failure to follow the advice of her physicians to take anti-depressant medications, attend counselling sessions, undertake an active exercise program and in hiding certain of her symptoms from Dr. Mathias. The defendants say that had Ms. Castro followed the advice of her physicians and addressed her problems earlier, her prognosis would have been considerably better.

[91]        The onus is on the defendant to establish that the plaintiff acted unreasonably in her failure to take a course of treatment recommended by her medical practitioners and the extent to which her damages would have been reduced had she acted reasonably: Gregory at para. 56 where Madam Justice Garson, for the court said:

I would describe the mitigation test as a subjective/objective test. That is whether the reasonable patient, having all the information at hand that the plaintiff possessed, ought reasonably to have undergone the recommended treatment. The second aspect of the test is “the extent, if any to which the plaintiff’s damages would have been reduced” by that treatment. The Turner case, on which the trial judge relies, uses slightly different language than this Court’s judgment in Chiu: “there is some likelihood that he or she would have received substantial benefit from it …”.

[92]        In cases involving a patient’s mental health the test is whether the plaintiff is capable of making a rational decision regarding their own care: MacLean v. Budget Rent-A-Car of Edmonton Ltd. et al, 2006 BCSC 1344 where at para. 71 Mr. Justice Cole referred to Janiak v. Ippolito, [1986] 1 S.C.R. 146 at para. 24:

… It seems to me that the line must be drawn between those plaintiffs who are capable of making a rational decision regarding their own care and those who, due to some pre-existing psychological condition, are not capable of making such a decision. …

[93]        In Middleton v. Morcke and Lee, 2007 BCSC 804, Madam Justice Stromberg-Stein found the plaintiff had failed to treat her depression and had not engaged in an exercise regime as recommended by her physicians and reduced her award for damages by 40%. The plaintiff had testified her reason for not pursuing group therapy was that “she did not want to be around other depressed people”. She told her doctor group therapy seemed “too drastic a way to deal with not being happy all the time” (at para. 48). At para. 49 Stromberg-Stein J said:

I agree with the defendants’ comment that this is a case of a patient thinking that she knows better than her health practitioners. In cross-examination when asked why she did not pursue group therapy and biofeedback, the plaintiff stated “I didn’t have time to do all that”. This response indicates that the plaintiff’s priority was not her recovery.

[94]        In Qiao v. Buckley, 2008 BCSC 1782, Madam Justice Sinclair Prowse reduced a plaintiff’s damages by 30% for failure to mitigate her loss by not following the recommendation of her doctors regarding the treatment of her psychological disorders. In that case, the plaintiff had taken her medications but had failed to follow a recommendation to take psychological counselling.

[95]        A case which is closer to, but distinguishable on its facts, from the present case is Tsalamandris v. MacDonald, 2011 BCSC 1138 (varied on other grounds 2012 BCCA 239), where Madam Justice Griffin stated at paras. 232 and 235:

[232]  As for medications, the plaintiff’s treating physicians all agreed that the plaintiff is highly sensitive to medications and often had side-effects which outweighed the benefit of the medicine. She thus started and stopped numerous medications in an attempt to find one that would work. All of these attempts were under medical supervision. None of the plaintiff’s treating physicians concluded that the plaintiff was acting inappropriately or refusing sound advice in her decisions with respect to medications.

[235]  The evidentiary record is replete with evidence of the plaintiff’s efforts to get better. I find that she has pursued and persisted in trying to find treatment. I find that she has followed medical advice to the best of her abilities.

 

 



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