If you are seriously injured in a car accident, the resulting pain and suffering may lead you to seek relief in the form of pain medication–legal or otherwise. In other cases, an accident may actually exacerbate an existing drug or substance addiction. But how does a victim’s drug use impact his or her ability to seek damages from a negligent driver in a personal injury lawsuit?
This was one of several questions recently addressed by a B.C. Supreme Court judge in the case of Lewis v. Gibson. This lawsuit arose from a 2012 Burnaby motor vehicle accident in Burnaby. The plaintiff, a man now in his mid-40s, and three of his friends were riding their motorcycles on Marine Way late in the afternoon.
As the plaintiff approached a strip mall the defendant, who was driving a sport utility vehicle, abruptly changed lanes and collided with the plaintiff’s motorcycle, knocking the plaintiff to the ground. The defendant’s SUV then crushed the plaintiff’s left foot.
The defendant neither admitted nor contested liability at trial. The trial judge, Justice Loryl Russell of B.C. Supreme Court, subsequently held the defendant was 100% at-fault for the accident. This still left the issue of damages.
The plaintiff has a long history of psychological disorders. He admitted to having substance abuse issues throughout his life. Prior to the accident, the plaintiff said he used “vast amounts of Percocet,” enough to “kill a person who had not built a tolerance for the drug.” The plaintiff also abused cocaine and alcohol, although by the time of trial he said those addictions were now under control.
At trial, the plaintiff argued the accident caused by the defendant “compounded his depression and anxiety,” which in turn led him to increasingly “self-medicate” by taking Percocet and cocaine “in lieu of other treatment options.” In effect, the plaintiff said his relapse into drug addiction was part of the damages arising from the accident.
Justice Russell did not quite see it that way. As the defence pointed out, the plaintiff himself admitted he “was already a heavy user and addicted to both Percocet and cocaine” before the accident. Justice Russell also noted that the plaintiff’s testimony on this subject was not particularly reliable, as he gave his own doctors “different accounts of his historic Percocet use.”
That said, the evidence did show that the plaintiff significantly increased his Percocet use after the accident, thereby establishing a connection between the defendant’s negligence and the plaintiff’s injuries. However, the judge also said there was no such link between the accident and the plaintiff’s cocaine addiction, which entirely “pre-existed” the accident and was not exacerbated in any way by the defendant’s actions.
The plaintiff’s credibility problems were not limited to his Percocet use. Justice Russell said the plaintiff was an “unreliable witness” overall. It was not that he deliberately lied to the Court. Rather, he was simply “a poor historian whose account of events clashed with more reliable documentary evidence or led to internal contradictions.” Nevertheless, the judge said the plaintiff “endeavoured to be truthful.”
These credibility issues, coupled with the plaintiff’s drug addiction, had an adverse effect on the judge’s award of non-pecuniary damages–i.e., compensation for the plaintiff’s pain and suffering following the accident.
The judge initially determined that an award of $150,000 was appropriate when compared to similar cases in B.C. But the Court then reduced this award by 20%, to $120,000, due to the plaintiff’s “failure to mitigate” his damages.
In justifying this reduction, Justice Russell cited the following factors:
In short, by self-medicating rather than seeking professional medical advice, the plaintiff acted “unreasonably” in the judge’s estimation.
Separately, Justice Russell awarded the plaintiff a substantial sum of $345,000 for loss of past and future income earning capacity. (Altogether, the Court awarded approximately $515,000 in damages.)
The bulk of the award–$300,000–covers future losses. Prior to the accident, the plaintiff was employed as a ship foreman. The accident forced him to miss two months of work. He subsequently changed employers twice. He currently works in a different position, that of a container gate foreman.
Justice Russell said it was “difficult to tell what effect” the plaintiff’s accident-related injuries had on his earning capacity with his current employer. It was clear the plaintiff could not currently work in his pre-accident position of ship foreman. But the judge said there were other, non-accident factors affecting the plaintiff’s earning capacity.
Nevertheless, the evidence was sufficient to establish the plaintiff “has been rendered less capable overall of earning income from all types of employment” and has “lost the ability to take advantage of all job opportunities that might otherwise have been open.”
Given the plaintiff has approximately 18 years until retirement, Justice Russell concluded $300,000 in damages for loss of future earning capacity was “appropriate.”
There are a few lessons to take away from this case. The first is that you should always follow expert medical advice following a motor vehicle accident. If your doctor refers you to a specialist for any reason, physical or psychological, it is in your best interest to follow up. If a judge (or jury) sees you do not make every reasonable effort to treat your accident-related injuries, that can and will negatively affect the amount of damages you receive.
The second lesson is that you cannot rely on your own memory being perfect. Even accident victims without the pre-existing mental health issues of the plaintiff in the case above may be unable to remember key events relevant to their case. This is why you should always work with an experienced Burnaby motor vehicle accident lawyer who can assist you in building a strong case that relies on more than your own incomplete recollection.