In today’s post, a Plaintiff is awarded $100,000 non-pecuniary damages for injuries sustained in a severe rear-end collision.
The decision is referenced as Vine v. Taylor, 2018 BCSC 493. The Plaintiff, who was 34 years old at the time of the collision dated July 4, 2018, had a pre-existing moderate substance use disorder. However, post collision, the Plaintiff’s substance use increased significantly and resulted in a severe substance use disorder. The medical evidence confirms that the motor vehicle collision was likely the triggering factor that led to the Plaintiff’s increased substance use.
The Plaintiff also claims “loss of earnings to the date of trial, loss of future earning capacity, damages for the cost of future care, special damages and past and future cost of health care services pursuant to the Health Care Costs Recovery Act, S.B.C. 2008, c. 27 [HCCRA].”
Liability was admitted by the Defendant.
This post will highlight the mitigation arguments, which were unsuccessful in this claim.
 The defendants say that even if Mr. Vine has established a link between the injuries sustained in the Accident and increased substance use, he cannot increase his damages “by acting self destructively, by increasing consumption of alcohol and cocaine, and saddle [the defendants] with responsibility for those additional damages.”
 In Janiak, the Supreme Court of Canada stated, at para. 28:
- In Asamera Oil Corp. v. Sea Oil & General Corp.,  1 S.C.R. 633, Estey J. stated at p. 649 that “A plaintiff need not take all possible steps to reduce his loss”. He is only bound to act like “a reasonable and prudent man”: British Westinghouse Electric and Manufacturing Co. v. Underground Electric Railways Company of London,  A.C. 673 (H.L.) The steps he takes, Lord Macmillan said in Banco de Portugal v. Waterlow and Sons, Ltd.,  A.C. 452, at p. 506, “ought not to be weighed in nice scales”.
 The defendants also rely on Cassells v. Ladolcetta, 2012 BCCA 27, where the Court of Appeal said, at paras. 26 and 27:
 I agree that if, by virtue of the injury sustained in an accident, a plaintiff is unable to make a reasonable decision about treatment, the plaintiff is in no different position with respect to mitigating the loss suffered than would be the case if, for other reasons unrelated to the accident, the plaintiff’s capacity to make reasonable decisions about treatment was lacking. But I cannot accept that means the law prescribes a subjective test, modified or otherwise. Janiak is clear; the test is objective. I consider that if a plaintiff had the capacity to make the decision about treatment it is said ought to have been made, and the advice was sound, the mitigation question in each instance must be what would be expected of a reasonable person in the circumstances having regard for the plaintiff’s medical condition at the material time and the advice given concerning treatment. If, through no fault of his own, the plaintiff did not have the capacity to make the decision, or the advice was not sound, the question would not arise.
 It is not simply a matter of a plaintiff having to follow the advice given in order to mitigate the loss claimed, as the judge appears to suggest at the outset of his legal analysis; rather, it is a matter of considering what a reasonable recipient of such advice would be expected to do in the circumstances having regard for the nature of the advice and any explanation of the risks and benefits given.
 In my view, the defendants face two hurdles in their argument the plaintiff had a legal responsibility to mitigate his loss. The first is that, as a result of his addiction, Mr. Vine did not have the capacity to make the decisions the defendant says he should have made; that is, he did not appreciate the difference between seeking medical care and purchasing cocaine.
 The second is that the defendants called no evidence to support their argument that Mr. Vine was “acting self destructively”, seeking to imply Mr. Vine had the capacity to act in a rational manner in making a choice whether to consume or not consume alcohol and cocaine. The defendants’ argument ignores the diagnosis of Dr. Mathew that Mr. Vine had a moderate substance use disorder before the Accident and a severe disorder following the Accident. Dr. Faraday testified that persons in a condition of dependency, like Mr. Vine was in, are not able to make rational decisions about the treatment options which are open to them. I have made the point above that the defendants chose not to call medical evidence to respond to the opinions expressed by Dr. Faraday in his report.
 The defendants also chose not to call evidence to the effect that, had Mr. Vine started treatment earlier, such as taking more than one physiotherapy treatment as originally recommended by Dr. Loubert, his symptoms would have improved. Dr. Faraday testified that had Mr. Vine started an earlier regime of such treatment it was unlikely there would have been any significant improvement in his symptoms.
 As stated in Chiu v. Chiu, 2002 BCCA 618, at para. 57, the onus is squarely on a defendant to prove two things: first, that the plaintiff has acted unreasonably in eschewing recommended treatment, and second, the extent, if any, to which the plaintiff’s damages would have been reduced had he undergone such treatment. I find the defendants have not proven either requirement. Even if Mr. Vine did act unreasonably in failing to take further physiotherapy treatments when initially recommended to him, the defendants have not established the second test: that his damages would have been reduced had he acted reasonably.
The award in this case:
- $100,000 in non-pecuniary damages;
- $100,000 for past loss of income;
- $120,000 for loss of future income;
- $7,800 for cost of future care; and
- $15,687.97 for special damages;
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