BC Court of Appeal backs Judge cutting claimant’s damages in half because she stopped psych treatment & didn’t try to return to work

Ms. Mullens continued to experience significant pain & psychological problems 4 years after her accident when she went to trial. Her doctors had recommended more psychiatric treatment & exercise but she did not follow this advice. She also never tried to gradually return to work.

 

Ms. M’s doctor strongly recommended she use anti-depressants. She showed improvement when she was on them, but a few months after her accident she stopped taking them for 2 years because of her plans for a second child & she did not resume them until 3 months after she stopped breastfeeding her child.

 

Her doctors also advised her to do physical exercise, but her husband admitted at trial that she was not doing much exercise other than attending Pilates.

 

Mr. Justice Verhoeven concluded that Ms M should have:

  • resumed using anti-depressants earlier than she did,
  • seen a treating psychiatrist,
  • done more physical exercise &
  • attempted to return to work about 9 months after her accident.

 

The judge:

  • accepted the opinion of the psychiatrist ICBC hired that she could have returned to work with some possible limitations,
  • was further persuaded by the fact that she had a sympathetic & supportive employer &
  • thought that if she had returned to work this would have helped her mood disorder because “her sense of identity & self-esteem were tightly connected to her work & career”.

 

The judge:

  • assessed the value of Ms M’s pain & suffering at $140,000 but
  • decided to reduce this by a whopping 50% to $70,000

because he thought that:

  • she failed to take reasonable steps that
  • would have likely substantially reduced the consequences of her initial injuries.

 

On November 6, 2017, Mr. Justice Savage of the BC Court of Appeal showed how this court considers appeals when he wrote:

  • “In my view, it cannot be said that there was no evidence upon which the trial judge could have reached the conclusions he did.
  • The trial judge did not proceed on a mistaken or wrong principle. 
  • Although different inferences were available, it cannot be said that the result at trial was in error.
  •  It is not the role of this Court to reweigh the evidence in respect of:
    • factual determinations and
    • the inference-drawing process itself.” (paragraphs 61 & 62)

The two other judges of the Court of Appeal panel agreed with his reasoning.

 

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