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Pre-Existing Substance Use Disorder: Relevance to Mitigation and Assessment of Original Condition

How will my alcohol consumption affect the court’s assessment of my award for compensation? Will I be penalized by the courts if I have a pre-existing substance abuse problem fail to mitigate my losses? What if my drinking habits became worse after the collision?

In a decision released last week (Zwinge v Neylan, 2017 BCSC 1861), the court was faced with issue of the plaintiff’s pre-existing Substance Abuse Disorder. The plaintiff had a troubling upbringing but was able to function and earn a living as a dry-waller. As a result of the head on collision with the defendant, the plaintiff suffered from a multitude of physical injuries and psychological injuries including depression, PTSD symptoms, and anxiety. ICBC’s counsel for the defence 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.

In personal injury claims, a plaintiff has an obligation to take all reasonable measures to reduce his or her damages, including undergoing treatment to alleviate or cure injuries. Once the plaintiff has proved the defendant’s liability for his or her injuries, the defendant must prove that the plaintiff acted unreasonably, and that reasonable conduct would have reduced or eliminated the loss.

On the facts, a doctor who assessed the plaintiff recommended he attain and maintain a sober state as ongoing use of alcohol will contribute to generalized anxiety and depressive symptoms and will interfere with any psychological treatments or medications. The plaintiff had not acquired that “sober state”.

After considering all the relevant facts, Mr. Justice Branch concluded that there should be some consideration of the plaintiff’s alcoholism in the assessment of damages:

[62]         The defendants’ concerns about the plaintiff’s alcohol use here are legitimate. The plaintiff would likely have had materially better prospects for recovery absent the pre-existing Substance Use Disorder. Below, where appropriate, I have treated this issue either as a negative contingency, or as a relevant factor in assessing the baseline “original position” of the plaintiff.

[63]         However, in this case the extent of the concern is moderated by the fact that the Substance Use Disorder was under some level of control before the accident, in that: (a) its effect on his quality of work was marginal, (b) he had obtained some treatment in 2013, and (c) his drinking appears to have been somewhat moderated in the months leading up to the accident.

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