My doctor prescribed antidepressants to deal with my depression following a crash. I don’t like the way the medication makes me feel so I have stopped taking it. Will the courts penalize me when assessing my award?
In the recently released judgement McKenzie v. Lloyd (2016 BCSC 1745) the plaintiff was awarded $180,000 in general damages after suffering a stroke following a collision. His life was significantly altered by the stroke and he suffered depression as a result. The defence had argued that the depression would have been present even absent the collision as he had previously lost his home and savings after having been swindled by his grandmother. Madame Justice Russell considered the evidence and reduced the award by 10%:
[191] While there can be no doubt that, given his pecuniary circumstances, the plaintiff is partly motivated by financial gain, that does not change the fact that he suffered serious injuries which will likely have long lasting effects upon him. There are many unexplained issues about his involvement with a person who appears to have used him as a front for her questionable actions, ultimately resulting in his bankruptcy. However, I do not find that absent MVAs #1, #3 and #4 that he would have suffered the changes in personality, fatigue and depression that he has suffered.
[193] From that amount, I will deduct 10% by reason of the fact that at least some portion of his depression resulted from his financial issues and bankruptcy unrelated to the injuries caused by the stroke and the three later MVAs.
The defendants went on to argue that the plaintiff should have his award further reduced for failure to mitigate by not taking the antidepressant medication as prescribed by his doctor. The plaintiff had found the medication to be expensive and had had to rely on samples provided by his doctor. He took the medication for a time but stopped and claimed that the reason he stopped taking the medication is because he didn’t like “the way they made him feel.” Defence argued that if he had continued to take the medication as prescribed, his depression would have been less significant.
[194] The defendants have submitted that the plaintiff’s award should be reduced for failure to mitigate. In Chiu v. Chiu, 2002 BCCA 618, the court held the following at para. 57:
[57] The onus is on the defendant to prove that the plaintiff could have avoided all or a portion of his loss. 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 eschewing the recommended treatment, and (2) the extent, if any, to which the plaintiff’s damages would have been reduced had he acted reasonably.
[195] The defendants rely on Liu v. Bipinchandra, 2016 BCSC 283, asserting that the plaintiff failed to act reasonably because he did not abide by his physician’s prescription of anti-depressant medications, as he did not take them consistently or as prescribed. In Liu, the plaintiff was found to have acted unreasonably because she failed to follow the majority of treatment recommendations that were provided to her, including taking prescribed medications. The court found that none of the recommendations posed a risk to her, and several of them had prospects of improving her condition. Since she remained largely untreated as a result of her own decisions, an adjustment of 40% was applied to account for her failure to mitigate. Other similar cases were cited for support by the defendants.
[196] The plaintiff’s position is that he did not like the way the prescribed medication made him feel, and that it was very expensive. Dr. Zubek gave evidence that she provided large quantities of samples to the plaintiff since he could not afford the medication. She reported that, after she provided these samples, his compliance was similar to what she had experienced with the majority of her patients. The plaintiff also asserted he felt no significant reduction in his disabling symptoms when he took the medication.
Madame Justice Russell considered the arguments and provided her judgment:
[197] I do not find that the cases submitted by the defendants are apposite to these circumstances. The plaintiff sampled the prescribed medications with little to no result. In addition, since he did not like the way they made him feel, he did not want to continue to incur their cost. In the cases cited by the defendants, the plaintiffs blatantly disregarded numerous, if not all, medical recommendations because they either felt they knew better than their practitioners or simply did not want to follow their advice. Moreover, in those cases, there was evidence that the treatments in question would have helped with the conditions for which the plaintiffs claimed compensation.
[198] In this case, the plaintiff followed the advice of his medical practitioners and showed a willingness to try care items recommended by the experts, including seeing a psychological counsellor as well as taking anti-depressants. Since he tried the prescribed medications and felt they did not work, I cannot say that he merely disregarded the recommended advice, or that he acted unreasonably given his results with them.
[199] Further, I cannot say that there would have been improvement had he followed the recommended prescription. The plaintiff did not improve when he tried the medication. In this regard, I note as well that Dr. James stated in cross-examination that many patients do not experience improvement to their depressive symptoms from medication and sometimes anti-depressants are not efficacious for a particular patient.
[200] Therefore, the defendants’ assertion that the plaintiff failed to mitigate his damages must fail.
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