Carfra Lawton LLP | Victoria BC

Failure to follow medical recommendations results in reduction in damages

In Benson v. Day 2014 BCSC 2224 the plaintiff’s damages were reduced by 15% after he obtained only “woefully inadequate” treatment following a motor vehicle accident, contrary to medical professionals’ recommendations. The plaintiff suffered soft tissue injuries to his neck and back, anxiety and cognitive issues in the accident. His physicians repeatedly advised him to pursue physiotherapy and cognitive behavioral therapy. Instead, the plaintiff took six chiropractic sessions and two counseling sessions. The plaintiff’s explanation that he was too tired to go to treatment was held to be insufficient. The 15% reduction was applied to the awards for non-pecuniary damages, past wage loss and loss of future earning capacity, but the court held it would be unreasonable to reduce the costs of future care or special damages because the latter encompassed costs that the plaintiff would have incurred in any event, had he sought treatment earlier.

Case law update by: Chelsea Lott