The Court of Appeal overturned a decision by a trial judge to reduce a claimants award by 10% for refusing to undergo cortisone injections. There appears to be no new law created in this Insurance Corporation of British Columbia personal injury case (Gregory v. Insurance Corporation of British Columbia, 2011 BCCA 144) but rather a reiteration of the common law going back to the cornerstone Supreme Court of Canada case on failure to mitigate(Janiak v. Ippolito).
The injury claimant was driving north bound on Foster Street in White Rock, British Columbia. She proceeded through the intersection of Foster Street and Prospect Avenue when she was struck by a west bound vehicle, which had failed to stop at the stop sign. The other driver admited fault for the accident.
The major injury suffered by the claimant was to her left shoulder and the orthopaedic surgeon described this injury as an abnormality in the subscapularis tendon at the site of the superior border. There was no dispute, either at trial or on appeal, that the injury was caused by the car accident.
The claimant appealled claiming the trial judge’s assessment of her future loss of earning capacity was much too low and could not be supported by the evidence. Second, she claimed the trial judge made an error by dismissing her claims for future care costs . Third, she says the judge was wrong in reducing the entire award by 10% for her failure to mitigate her losses by refusing to undergo cortisone injections. This post will only deal with the third ground of appeal.
The claimant insisted that the judge misunderstood the evidence concerning the recommended cortisone injection. She argued that the medical witnesses did not specifically address the question of whether or not a cortisone injection would likely have an effect on her recovery. The Court of Appeal pointed to the test for failure to mitigate set out in Chiu v. Chiu, 2002 BCCA 618 as follows:
“[57] The onus is on the defendant to prove that the plaintiff could have avoided all or a portion of his loss. In a personal injury case in which the plaintiff has not pursued a course of medical treatment recommended to him by doctors, the defendant must prove two things: (1) that the plaintiff acted unreasonably in eschewing the recommended treatment, and (2) the extent, if any, to which the plaintiff’s damages would have been reduced had he acted reasonably. These principles are found in Janiak v. Ippolito, [1985] 1 S.C.R. 146.”
In reversing the trial judge’s finding that the claimant failed to mitigate the court stated starting at para 56,
“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 …”.
In this case the trial judge found as a fact that the cortisone shots were “not necessarily curative, they reduce the inflammation… Sometimes the relief is only temporary but sometimes the injections bring long term benefits”. She did not find that the treatment would have reduced the symptoms. In addition there is the fact that the plaintiff reasonably believed the diagnosis was a tear and that the injections would have no healing effect on a tear.
Regardless of whether the trial judge erred in finding on the evidence that it was objectively reasonable for the plaintiff to undergo the injections, I conclude that she erred in her application of the correct test, as articulated in Chiu. The physicians testified only that it was a reasonable treatment to try, and it might afford some relief. In my view such an opinion does not meet the threshold for reducing an award as described in Chiu.”
The Court of Appeal acceded to this ground of appeal and reversed the trial judge’s decision to reduce the award by 10%. Posted By Mr. Renn A. Holness
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