28 Feb A Plaintiff’s Duty to Follow Reasonable Medical Advice
In the case of Lally v. He, 2016 BCSC 2187, the Plaintiff was injured when her vehicle was rear-ended by the Defendant. Liability was admitted but the defence disputed the amount of damages the Plaintiff was claiming. The defence submitted that the Plaintiff’s decision to withdraw from chiropractic treatments and her failure to continue an active rehabilitation program was unreasonable, delayed her recovery and hindered her overall prognosis.
There is a duty on the Plaintiff to act reasonably to mitigate their loss and follow appropriate medical advice in order to recover as quickly as possible. If a Plaintiff does not follow reasonable medical advice the Defendant can seek to have the Plaintiff’s damages reduced.
The Court held that the Plaintiff’s decision to stop chiropractic treatments was reasonable, as the chiropractic treatments had been recommended by only one of her physicians, and the treatments themselves exacerbated her pain and made her condition worse.
However, the Plaintiff’s decision to discontinue an active rehabilitation program was a failure to mitigate her losses because an active rehabilitation program and exercise regime was recommended by five of her treatment providers and physicians. It was likely that had she started this program earlier she would have recovered more quickly.
The Court found that the Plaintiff’s explanation that she could not continue an active rehabilitation program due to work commitments was very vague and unreasonable. Her work commitments did not preclude her from following the medical advice she had been given to continue an exercise program and rehabilitation.
As a result of the Plaintiff’s failure to mitigate, the Court reduced her awards for non-pecuniary damages, past loss of income capacity and special damages by 10%. The Court did not reduce her awards for future loss of income earning capacity or cost of future care as the Court expected that she would continue with her active rehabilitation program in the future, as recommended by her physicians.