19 Dec Substance Use Disorder

In British Columbia, Plaintiffs are obligated to take all reasonable measures to reduce their damages, including undergoing treatment to alleviate or cure injuries.  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 undergoing the recommended treatment, and (2) the extent, if any, to which the Plaintiff’s damages would have been reduced had he acted reasonably.

In the case of Zwinge v. Neylan, 2017 BCSC 1861, the Plaintiff suffered soft tissue injuries and spine facet joint syndrome as a result of a substantial head-on collision. He was disabled from working in any capacity and the quality of his life was significantly reduced.  While the Plaintiff had some prospect for recovery, his prognosis was guarded.

The Plaintiff suffered from a pre-existing and active Substance Use Disorder.  He did not seek counselling for his Substance Use Disorder after the accident.

ICBC’s arguments on mitigation and the impact of the Substance Use Disorder were that the Plaintiff suffered from a Substance Use Disorder, did not stop drinking after the accident and did not take active steps to address his condition. They argued that the continued alcohol abuse complicated the Plaintiff’s ability to recover, from a psychiatric and psychological perspective, and also from the point of view of properly managing the required medications.

The Court noted that ICBC’s concerns about the Plaintiff’s alcohol use were legitimate. The Plaintiff would likely have had better prospects for recovery absent the pre-existing Substance Use Disorder.  The Court acknowledged that this was relevant to the assessment of damages.

The Court also acknowledged that the extent of the concern was moderated by the fact that the effect of the Substance Use Disorder on the Plaintiff’s quality of work was marginal before the accident.  In addition, he had obtained some treatment in 2013 and his drinking appeared to have been somewhat moderated in the months leading up to the accident.

The Court concluded that “but for” the accident, the Plaintiff would not have suffered from depression, PTSD symptoms and anxiety. While the Substance Use Disorder also contributed to his psychiatric and psychological difficulties, it was only necessary for the accident to be a material contributor, not the sole contributor.  Keeping in mind that the Defendants only needed to return the Plaintiff to his pre-accident condition, the Court awarded the Plaintiff $150,000 for non-pecuniary damages.

In determining wage loss, the Court recognized that this was a significant accident and injury, and one could expect a meaningful period of recovery. The recovery was longer and more difficult than expected primarily due in part to the overlay of both the psychiatric and psychological conditions, but the accident did materially contribute to these conditions.  Past wage loss was determined to be an average of $32,000/year.  A total of $97,693 was awarded under this heading.

Future loss of earning capacity was set at an average of $32,000 for an additional two years.  Thereafter, it was estimated that the Plaintiff should be able to earn $12,000/year until he retired at that age of 65.  The Court found that $400,000 was a reasonable assessment of loss of future earning capacity.