Carfra Lawton LLP | Victoria BC

20% mitigation for refusal to attend therapy and alcohol problem

In Rasmussen v Blower 2014 BCSC 1697 the BCSC reduced the plaintiff’s non-pecuniary award by 20% for refusal to attend any more than one session each of physiotherapy and massage and for drinking enough alcohol to reduce or nullify the effect of prescribed medication. The plaintiff suffered soft tissue injures when a passenger in a minivan. He suffered soft tissue injuries to his knee, neck and back. Under cross examination he admitted to overuse of alcohol and failing to attend any more than two session of recommended therapy.

Interestingly, the court rejected the plaintiff’s explanations for failing to attend any more therapy: the sessions were painful, he was constantly travelling and he could not afford the treatments. The court found perseverance was required, he was off work for three months when he could have attended therapy and he had sufficient funds to attend (or could have claimed no fault benefits – in BC called part 7 benefits).

The court determined that the plaintiff’s failure to attend any more physiotherapy or massage and his alcohol consumption amounted to a failure to mitigate.

Case summary by: Reza Sadeghi-Yekta