ICBC Law

Reasons for judgement were released today discussing two ares of interest in the context of an ICBC injury claim; the non-pecuniary value of a shoulder injury and “failure to mitigate” for following naturopathic remedies instead of recommended surgery.

In today’s case (Hauer v. Clendenning) the Plaintiff was injured in a 2006 BC vehicle collision.  The Plaintiff was a passenger in a vehicle involved in an intersection crash.  The crash was “significant, causing extensive damage to both vehicles“.   Fault was admitted by the Defendant focusing the trial on the value of the case.

• Discussion of Non-Pecuniary Damages for Plaintiff’s Shoulder Injury

The Plaintiff suffered various soft tissue injuries which improved by the time of trial.  The Plaintiff’s most serious injury was a right shoulder injury which remained symptomatic by the time of trial.

The Court heard evidence from a number of expert physicians including orthopaedic surgeon Dr. Richardson who gave evidence that the Plaintiff has a rotator cuff injury to her right shoulder resulting in tendonitis and impingement.  Her prognosis for full recover was “guarded“.

Mr. Justice Slade assessed the Plaintiff’s non-pecuniary damages (money for pain and suffering and loss of enjoyment of life) at $50,000.  In arriving at this figure the Court made the following findings and provided the following analysis:

[72] It is not a matter of contention among the medical experts that the plaintiff sustained soft tissue injuries in the August 6, 2006 accident.  These injuries were to the neck, shoulder, and back. ..

[75] The medical experts are all of the view that the plaintiff will benefit from injections in the shoulder area, that being the most problematic of the plaintiff’s injuries.  Dr. Aitken and Dr. Richardson say that she may benefit from arthroscopic surgery on the shoulder…

[78] I accept the evidence of the lay witnesses that the plaintiff was active and fully able to perform the physical demands of her employment before the accident, and after the accident, is no longer as active or able to perform to the pre-accident level.  The evidence of the plaintiff, the lay witnesses, and Dr. Richardson, establish a causal connection between the accident and the plaintiff’s ongoing shoulder pain, and establish, as fact, the contribution of injuries sustained in the accident to the present condition of her shoulder.

[79] The plaintiff’s shoulder pain has persisted, largely undiminished, from the time of the accident. ..

[82] I find that the accident is a significant contributing factor to her shoulder injury, and that the plaintiff has established causation on the “but for” test described in Resurfice Corp. v. Hanke, 2007 SCC 7, [2007] 1 S.C.R. 333…

[85] Considering these authorities and the factors set out by Kirkpatrick J.A. in Stapley v. Hejslet, 2006 BCCA 34 at paras. 45-46, 263 D.L.R. (4^th) 19, leave to appeal ref’d [2006] S.C.C.A. No. 100, I award the plaintiff $50,000 in non-pecuniary damages.

• Failure to Mitigate:

Further to my previous articles on the subject, it is well established that the Court can reduce a Plaintiff’s award in a personal injury claim if a Plaintiff unreasonably fails to follow medical advice where the medical would have likely improved the injuries.

In today’s case the Defendant argued that the Plaintiff failed to mitigate her damages by not having injections and/or surgery on her shoulder injury.  Mr. Justice Slade agreed with this submission and found that the Plaintiff failed to mitigate her damages by not following the advice of the orthopaedic surgeons and instead choosing naturopathic remedies.  The Court reduced the Plaintiff’s damages by 30% as a result.  Specifically Mr. Justice Slade held as follows:

[105] The defendant bears the burden of establishing that the plaintiff has failed to mitigate her loss, in this case that she failed to follow medical direction, and that had she followed that advice, she would have recovered further or faster: Janiak v. Ippolito, [1985] 1 S.C.R. 146.

[106] The plaintiff prefers naturopathic remedies.  She was influenced by advice given by a friend on the effect of injections.  A physician advised her, informally, that she may not benefit from surgery.  On these bases, she declined to act on the recommendations of three well-qualified orthopaedic surgeons to take injections into the shoulder area, and to consider arthroscopic surgery.  Dr. Richardson puts the percentage chance of improvement from arthroscopic surgery at between 70-80%.

[107] There are, of course, risks associated with surgery, though these seem minimal.  If the plaintiff underwent surgery, there may be some losses during the recovery period.

[108] There will be a reduction of 30% of the amounts awarded for general damages, loss of income earning capacity, and cost of care due to the plaintiff’s failure to mitigate.

(Please note the Trial Court’s decision regarding mitigation of damages in the below post was overturned on Appeal.  You can click here to read the BC Court of Appeal’s judgement)

Reasons for judgement were released today by the BC Supreme Court, New Westminster Registry, dealing with an assessment of damages for a shoulder injury, specifically a post traumatic tendinopathy.

In today’s case (Gregory v. ICBC) the Plaintiff was involved in a 2006 collision in White Rock, BC.  Her vehicle was struck while travelling through an intersection by the Defendant who failed to stop at a stop sign.  Fault was admitted by ICBC focusing the trial on the Plaintiff’s injuries.

• Non-Pecuniary Damages Discussion

The Plaintiff suffered various soft tissue injuries to her neck and back that healed before trial.  The Plaintiff’s worst injury was to her left shoulder.   Dr. Day, an orthapeadic surgeon gave evidence that the Plaintiff suffered an “abnormality in the subscapularis tendon at the site of the superior border.  In addition there was inflammation in the subacromial bursa.”  Dr. Day also testified that the plaintiff had a “post traumatic tendinopathy causing some discomfort“.

The Plaintiff required surgery to “clean up” a “thick, tight subacromial bursa” because this caused irritation.

Following this the Plaintiff continued to have some shoulder pain which was aggravated by certain movements.  The Court accepted that this would likely continue into the future.  In assessing the non-pecuniary loss the Plaintiff suffered as a result of her injuries at $60,000 Madam Justice Kloegman found as follows:

[11] Due to the plethora of shoulder injury cases in the case law, it is important to distinguish the plaintiff’s shoulder injury from some of the shoulder injuries suffered by other plaintiffs in other cases. In the case at bar, the plaintiff does not have:

1.       neurological deficit;

2.       instability in her shoulder;

3.       frozen shoulder;

4.       restricted range of motion;

5.       dislocation or subluxation;

6.       arthritis; and

7.       muscle wasting.

[12] However, I accept that the plaintiff does have ongoing chronic pain in her shoulder which is exacerbated by certain movements. There was no suggestion that the plaintiff was a malingerer or was exaggerating her symptoms. Notwithstanding that pain is a subjective symptom, the medical professionals found some objective corroboration in the tendinopathy and bursitis. Unfortunately, the plaintiff will likely continue to suffer various degrees of pain in her left shoulder in the future. To this extent she is mildly restricted in her activities and potential for employment.

[13] In summary, I find that the accident caused injury to the plaintiff, primarily in her left shoulder joint, which injury is mildly impairing and likely of a permanent nature. This injury has caused and will continue to cause the plaintiff pain and suffering, and has caused and will continue to cause some loss in her ability to earn income both in the past and the present. ..

[21] As I have found that the plaintiff is likely permanently impaired, albeit to a minor degree, the cases of Thauli, Grant and John are more helpful. Reviewing these cases and keeping in mind the more severe injuries described in those cases, I am of the view that $60,000 is reasonable compensation for the plaintiff’s pain and suffering in this case.

• Failure To Mitigate

This case is also worth reviewing for the Court’s discussion of the law of mitigation.  Here Madam Justice Kloegman found that the unreasonably failed to follow her doctors advice to have a cortisone injection in her shoulder.  The court found that there was a chance that this would have improved her symptoms.

The Plaintiff did not follow her doctor’s recommendation apparently because of “what she read on the internet” and discussions she had “with her claims adjuster and chiropractor“.  The court found that these were unreasonable explanations for not following the doctor’s advice and as a result reduced the Plaintiff’s damages by 10%.  The Courts discussion of mitigation can be found at paragraphs 34-35 of the reasons for judgement.

When advancing an ICBC tort claim Plaintiffs have a duty to take reasonable steps to limit their loss.  If a plaintiff does not do so the value of their claim can be reduced .  This legal defence is known as “failure to mitigate“.  (You can click here to read my previous posts discussing this topic).

In the personal injury context, it is not unusual for defendants to argue that plaintiffs failed to mitigate their damages.  A common argument is that a Plaintiff failed to follow medical advice.

While failing to follow medical advice can result in reduction of the value of a claim, this fact in and of itself is not enough.  To succeed the Defendant will have to prove not only that the Plaintiff failed to follow medical advice but that had the Plaintiff done so it would have improved the course of their injuries.  Reasons for judgement were released today demonstrating this principle.

In today’s case (Singh v. Shergill) the Plaintiff was injured in a 2006 rear-end collision.  Fault was admitted.  The Plaintiff’s injuries included soft tissue damage to his low back.  The Defendant argued that the Plaintiff “did not follow his doctor’s recommendations” and that the Court should reduce the value of the claim for failure to mitigate.  Madam Justice Baker agreed that the Plaintiff ”did not follow his doctor’s recommendations” but did not reduce the value of the Plaintiff’s claim.  Specifically the Court held as follows:

[45] The defendant submits that Mr. Singh would have recovered more quickly, and would experience less discomfort and impairment if he had followed Dr. Ng’s recommendation to undergo physiotherapy for a period longer than he did, and to engage in an active program of physical exercise to strengthen his core muscles, in particular, his abdominal muscles.

[46] I agree with the defendant that Mr. Singh did not follow his doctor’s recommendations.  I am not persuaded, however, that the evidence is sufficient to permit me to conclude that Mr. Singh would have recovered more fully, or more quickly, if he had done as Dr. Ng recommended.  Mr. Singh testified that although the five physiotherapy treatments he did have in 2006 resolved the problems in his neck and shoulders, he experienced no relief in relation to the lower back symptoms.

[47] I expect that Dr. Ng was hopeful that the treatment he was recommending would be of benefit to Mr. Singh, but he has not testified that it is probable that Mr. Singh would be in better condition today if he had continued physiotherapy.  Dr. Ng has pointed out, and the evidence establishes, that the job Mr. Singh does five days a week involves considerable physical labour, and therefore Mr. Singh does get physical exercise.

[48] I conclude the defendant has failed to prove a failure to mitigate.

The lesson to be learned is that the Defendant has the burden of proving failure to mitigate in a personal injury lawsuit.

If this defense is raised it needs to be determined what difference would have been made if the Plaintiff did what the Defendant alleges the Plaintiff should have done.  Usually expert opinion evidence would be necessary to discharge this burden and Plaintiffs faced with this defence would be wise to scrutinize the evidence Defendants have in support of their arguments when gauging whether their settlement should be affected for failure to mitigate.

Reasons for judgement were released today by the BC Supreme Court, Vancouver Registry, considering the value of chronic soft tissue injuries following a motor vehicle collision.

In today’s case (Harris v. Zabaras) the Plaintiff was injured in a pretty forceful rear-end collision involving two pick up trucks.  Fault for the crash was admitted leaving the Court to focus on the extent and value of injuries and loss.

The Plaintiff suffered from soft tissue injuries to his neck and upper back in the collision.  The injuries, while they improved somewhat by the time of trial, were expected to have some lasting consequences.  In assessing the non-pecuniary damages at $50,000 Madam Justice Schultes provided the following analysis:

[66] Adjusted to current dollars, a guide to the range of awards for soft tissue injuries accompanied by emotional problems such as sleep disruption, nervousness or depression is approximately $42,000 - $150,000: Unger v. Singh, 2000 BCCA 94 at para. 32…

[68] When characterizing the effects of the plaintiff’s injuries for the purposes of non-pecuniary damages, I do not think it is helpful to attempt to choose between the labels of “mild” and “mild to moderate” that have been offered by two of the medical witnesses. At the end of the day, what is important is the pain the plaintiff experiences as a result of the injuries and how that impacts his life.

[69] In that regard, while there has been some reduction in the frequency of the plaintiff’s headaches, he remains subject to neck and left arm pain whenever he undertakes strenuous physical activity. As Dr. Travlos put it, “he will generally pay the consequences for doing such activities”.

[70] The extent of his resulting disability is that he must either avoid strenuous physical activity or divide it into more manageable chunks that will not provoke symptoms. This compromises his ability to engage fully in the recreational building or maintenance activities that have previously been a source of pleasure to him and in turn has led to a level of depression in the face of his more limited prospects.

[71] Even if he is able to relieve his symptoms somewhat through the steps that have been recommended to him, the consensus of medical opinion is that they will persist.

[72] However I note that the plaintiff speaks of being unable for the most part to engage in these activities any longer whereas Dr. Travlos has encouraged him to continue to be as active as possible, bearing in mind that his capacity for working continuously will be reduced and that he will experience pain as a result.

[73] This relates to Dr. Devonshire’s observation that the plaintiff may be over-rating his pain, because he has not required any “significant analgesia” ( by which I think she means prescription- level painkillers) to control it.

[74] While I am satisfied that the physical symptoms that the plaintiff, his wife and the Grieves have described are genuine, he nevertheless appears to view them as imposing somewhat greater limitations on his physical activities than may actually be the case.

[75] Perhaps the fairest way to characterize the effect of his symptoms is that they place meaningful restrictions on his ability to pursue strenuous physical activities in the manner and to the extent that he previously did…

[79] Taking into account all of the circumstances and the authorities, I think that an award of $50,000 for non-pecuniary damages is appropriate in this case. In arriving at this amount I am mindful of the fact that the award in Hanna, when adjusted to current dollars, falls within a similar range, even though it involved a brachial plexus injury. The effect on the plaintiff in that case however, was quite similar to the plaintiff’s situation, so I do not think that diagnosis in itself limits its applicability.

The Plaintiff’s damages were reduced by 10% for failing to take some steps which could have improved his accident related symptoms.  The court’s discussion of ‘failure to mitigate’ set out at paragraphs 80-88 of the reasons for judgement are worth reviewing for a quick introduction to this area of personal injury law.

Reasons for judgment were released today by the BC Supreme Court, Cranbrook Registry demonstrating that a lengthy duration of injury does not always merit a significant award of non-pecuniary damages.

In today’s case (Salzmann v. Bohmer) the Plaintiff was injured in a BC Car Crash.  The collision took place over 10 years before trial.  While the time-frame from the accident to trial was unusually long, such delays are not unheard of when Infant Plaintiffs are involved in motor vehicle collisions.  One reason for this is that in British Columbia  limitation periods typically do not start running for infants in tort claims until their 19th birthday.  Another reason is that doctors are more reluctant to give a prognosis with respect to injuries suffered in infants as opposed to adults.  In any event, this case involved injuries of over 10 years duration by the time of trial.

Despite the duration of the Plaintiff’s Injuries, Mr. Justice Melnick found that they were not particularly severe or debilitating. He also found that she failed to take reasonable steps to reduce her symptoms and that with appropriate exercises there was room for considerable improvement.  In assessing the Plaintiff’s non pecuniary damages at $35,000 Mr. Justice Melnick held as follows:

[18] Medical reports are often as interesting for how they are worded as for what opinions they express. In the case of the report of Dr. Apel, she indicated that she has examined Ms. Salzmann at the request of Ms. Salzmann’s counsel. Then, while responding to a specific question put to her by that same counsel (whether Ms. Salzmann’s symptoms will abate eventually) she carefully replied that “…it is unlikely those symptoms spontaneously will abate eventually” (emphasis added).

[19] The use of the word “spontaneously” coupled with her pointed remarks that Ms. Salzmann’s lack of conditioning and need for an exercise therapist or kinesiologist suggests to me that Ms. Salzmann’s symptoms likely will abate provided she becomes committed to an appropriate program of exercise (as opposed to passive treatments such as massage). Ms. Salzmann must take a significant role in her own recovery, something she has not done in the past (perhaps due to her being so young, perhaps due to not having been given adequate instruction or having been provided with the required sense of self-discipline). For this reason she bears some, but far from all, of the responsibility for her continued pain given that she was injured when only ten years of age.

[20] I have no doubt that Ms. Salzmann suffered musculoligamentous strain to her cervical spine as a result of the accident and that, in 2003, she still experienced residual tightness in her trapezius and pectoral muscles. I also accept that in 2008 she demonstrated a chronic regional myofascial pain syndrome as described by Dr. Apel. Whether, by that time, she could have avoided such a sequela to the injury she incurred in the accident is a good question.  Things may have been different if she had followed an appropriate and properly directed regime of exercise after the accident. The reality is that she did not, and the symptoms she displayed apparently were not sufficiently alarming to anyone to insist that she do so, and she was not a complainer. With a few exceptions, Ms. Salzmann’s life carried on much as normal, as best as could be observed in a child who was in the process of development, growing and maturing.

[21] Today, she still suffers from the injury she received in the accident. But the message from her own doctor is loud and clear: she can do something about it.

[22] I have no evidence upon which I can estimate the cost of an exercise therapist or kinesiologist. Dr. Apel gave no indication of the length of time Ms. Salzmann should be supervised. However, the non-pecuniary damages I will award her will recognize that her road to the eventual abatement of her symptoms will probably require her to not just be self-motivated, but have the assistance of a professional for advice for a period of time to set her on the right track. That said, I note that no defendant should be required to pay for anyone’s lack of interest in pursuing his or her own recovery. Ultimately we all bear a responsibility to do what we can to attain and maintain good health. In the legal realm, this constitutes mitigation, and a plaintiff bears a legal duty to mitigate.

[23] With all of the above in mind, I assess Ms. Salzmann’s non-pecuniary damages at $35,000. I agree with Ms. Salzmann’s counsel that the decision of Madam Justice Humphreys in Sinnott v. Boggs, 2006 BCSC 768, is the most relevant authority provided to me with respect to non-pecuniary damages. Those provided by counsel for the defendant deal largely with milder forms of injury with less chronic consequences.

[24] From the amount of $35,000 I deduct 20% for Ms. Salzmann’s failure to mitigate by not pursuing the appropriate conditioning and exercise programs despite the fact that they were laid out for her as early as 2000. Thus, the net award of non-pecuniary damages is $28,000.

The short answer is yes.  In BC, if a Defendant who negligently injures you can prove that the extent of your injuries would have been less if you took reasonable steps to ‘mitigate’ your loss then the value of your damages can be reduced accordingly.  This principle of law is called ‘failure to mitigate’.

Failure to mitigate can include failing to follow a reasonable treatment or rehabilitation program such as a weight loss program.  Reasons for judgment were released today by the BC Supreme Court demonstrating the ‘failure to mitigate’ principle in action.

In today’s case (Rindero v. Nicholson) the Plaintiff was injured when seated as a rear-seat passenger in a pick up truck which struck a vehicle that ran a red light.  Fault was admitted leaving the court to deal with the issue of quantum of damages (value of the Plaintiff’s injuries and loss). In assessing the Plaintiff’s non-pecuniary damages (money for pain and suffering and loss of enjoyment of life) at $36,000 Mr. Justice Meiklem found that the Plaintiff suffered from Patellofemoral pain (knee pain), a slight exacerbation of pre-existing post traumatic stress disorder and recovered soft tissue injuries to the neck and shoulders with accompanying headaches.

The Court found that the Plaintiff’s knee injury was the most serious of the injuries and summarized its effect on the Plaintiff’s life as follows:

The plaintiff’s knee injury is probably chronic and not likely to fully resolve. It is troublesome and painful when he stands for long periods, sits for long periods, or overextends any vigorous physical activity….The most significant limiting effect on his activities that he mentioned in relation to his knee pain was restriction on his style of big game hunting, and fishing. He hunts only from roads as opposed to hiking off into the bush as he sometimes did, and he avoids fishing areas that involve difficult access.

In arriving at the $36,000 figure the court reduced the damages by 20% for the plaintiff’s failure to mitigate, specifically the failure to lose weight which would have reduced the extent of the knee pain.  Mr. Justice Meiklem summarized and applied the law of failure to mitigate as follows:

[30] The defendants argue that the plaintiff’s failure to significantly reduce his weight has contributed to the severity and persistence of his knee pain and amounts to a failure to mitigate, which should reduce his award. There can be no doubt that the plaintiff would suffer less with knee pain that is increased with physical activity if he lost weight. The medical evidence confirms this elementary physical principle. At an estimated 265 pounds at trial he was about 25 pounds heavier than he was when examined by Dr. McKenzie in July 2008. I note that in July 2008 his left knee pain, which is his primary injury, was less prominent than his right knee pain. I appreciate that sore knees would probably make it more difficult to engage in the vigorous exercise that is usually part of a weight loss program, but the plaintiff has demonstrated that he can lose a considerable amount of weight when he changes diet and lifestyle, and that his left knee pain was lessened when he weighed less.

[31] I note that the plaintiff told Dr. McKenzie that he experienced knee pain when riding his mountain bike more than an hour as soon after the accident as June 2005, which, apart from showing that his knee injury was not very disabling,  shows that exercise is not out of the question for him. I find that the defendant has established a failure on the part of the plaintiff to mitigate his damages.

[32] The extent to which damages should be reduced is obviously not amenable to any precise calculation on these facts, but I note that in the Collyer case cited by the plaintiff, an award of $80,000 was reduced by $10,000 for a comparable failure. In the Crichton case cited by the defendants a 30% discount was applied for failure to participate in group psychotherapy sessions recommended by a psychiatrist and a family doctor, which would address an anxiety disorder and thereby assist in dealing with chronic pain. I find that a discount of 20% to the award I would otherwise make to account for failure to mitigate is appropriate.

On another note, this case contains a useful discussion of plaintiff credibility and some of the factors courts look at when gauging this.  Additionally, this case contains a very useful discussion of the law of ‘diminished earning capacity’ (future wage loss) at paragraphs 35-39.

If you advance a BC Personal Injury Claim (a tort claim) the courts impose a duty on Plaintiffs to mitigate their losses.  What this means is a Plaintiff must take reasonable steps to minimize their losses.  If a Plaintiff unreasonably fails to follow medical advice or fails to return to work in a timely fashion despite being physically able to do so the court may reduce damages accordingly.

Reasons for judgment were released today by the BC Supreme Court, Vancouver Registry, demonstrating this legal principle.

In today’s case (Leung v. Foo) the Plaintiff was injured when travelling as a passenger in a single vehicle collision.   Fault was admitted by the driver of the Plaintiff’s vehicle.   The Plaintiff sustained ‘moderate soft tissue injuries’ and a disc herniation as a result of this collision.   Mr. Justice Cohen valued the Plaintiff’s non-pecuniary loss (pain and suffering) at $65,000 and then reduced these damages by 10% due to the Plaintiff’s ‘failure to mitigate ‘.  The Court summarized and applied this area of law as follows:

[112] The defendants submit that any award of damages should be reduced to reflect the plaintiff’s failure to mitigate through her delay in seeking psychological assistance, her refusal to participate in physiotherapy, her being discharged from CBI, and her failure to pursue an active exercise program in the face of medical advice to do so.

[113] Damages are not recoverable for any loss that a claimant ought to have avoided.  A claimant has a duty to mitigate losses, which includes taking all reasonable steps to minimize any loss that results from an injury, and bars a claimant from claiming any part of the damages that can be attributed to his or her neglect to take such steps.

[114] Mitigation limits recovery based on an unreasonable failure of the injured party to take reasonable steps to limit his or her loss.  A plaintiff in a personal injury action has a positive duty to mitigate, though the onus of proof on this issue rests with the defendant.  See: Graham v. Rogers, 2001 BCCA 432, leave to appeal dismissed, [2001] S.C.C.A. No. 467.

[115] In Maslen v. Rubenstein, at para. 11, the Court of Appeal held that where the court finds that injury has been suffered and mitigation issues are raised, the court must decide whether the defendant has established that by following advice which the plaintiff received or ought to have obtained, the plaintiff could have overcome the problem or could in future overcome it.  The advice might, for instance, be to eliminate treatment, make “lifestyle changes” or adopt psychotherapy, physiotherapy or an exercise regimen.  Where appropriate remedial measures would resolve the problem, damages can be awarded only in respect of the period up to the date when, in the estimation of the fact-finder, the problem ought to have been resolved, or ought to be resolved.

[116] Failure to follow a recommended exercise program commonly results in a reduction in damages for the plaintiff’s failure to mitigate.

[117] The defendants submit that the plaintiff has not given a satisfactory explanation as to why she did not exercise.  In addition, the plaintiff would have the Court accept that she did not seek the assistance of a psychologist because she lacked the sophistication necessary to do so in the face of her perception that Dr. Leung refused to give her a referral.

[118] The defendants submit that the plaintiff’s actions do not suggest a woman incapable of securing her own treatment.  On the contrary, the plaintiff took several proactive steps in relation to the treatment of her injuries.  The plaintiff found another GP in Dr. Wong, having lost faith in Dr. Leung; arranged her own massage and chiropractic treatments; discontinued physiotherapy; and decided against the steroid injections suggested by Dr. Adrian.

[119] The defendants also say that it is clear that counselling was discussed with the plaintiff in March 2008 by Dr. Wong.  Yet the plaintiff did not see Dr. Jung until September 2008, approximately six months later.  This is not evidence of a person anxious to obtain psychological treatment.  Rather, such delay and ambivalence is consistent with a person who was told that psychological treatment was recommended in 2006 (via Dr. Leung’s May 2^nd medical-legal report) but failed to take any immediate steps in that regard.  The plaintiff herself admitted that she did not pursue psychological treatment or start an exercise regimen because she was too busy with work.  She gave the same reason for missing appointments with CBI.

[120] The defendants submit that plaintiff’s decisions to not pursue treatment may well have delayed or prevented the improvement of her symptoms, a state of affairs for which the defendants should not be held responsible.

[121] I agree with the defence position on mitigation and find that the plaintiff’s failure to mitigate resulted in an extension of her recovery beyond that considered reasonable for her injuries, and that the plaintiff’s general damages award should be reduced by 10%.

If you are injured in BC through the fault of another and advance a tort claim you have a duty to mitigate your damages.  What this means is you have a duty to take reasonable steps to minimize your losses.  For example, if you are capable of getting back to work you ought to do so, or if your doctor prescribes a rehabilitation program you should take reasonable steps to follow this advice.

If you fail to mitigate your damages the value of your damages may be reduced accordingly.  In other words, if the Court finds that you unreasonably failed to follow a rehabilitation program and doing so would have improved your injuries by 50% the value of your Injury Claim could be reduced by 50%.

But what if you can’t afford to follow your doctors advice?  What if the medications prescribed are too expensive or if the physiotherapy costs are beyond your budget, surely this can’t amount to a failure to mitigate, can it?  Unfortunately it can if you have ICBC No Fault Benefits available to you and you fail to apply for and receive these.  Section 83(2) of the Insurance (Vehicle) Act reads as follows:

(2) A person who has a claim for damages and who receives or is entitled to receive benefits respecting the loss on which the claim is based, is deemed to have released the claim to the extent of the benefits.

What this means is that if you could recieve ICBC rehabilitation benefits and fail to apply for these the person that injured you can successfully argue that you failed to mitigate your damages.

Reasons for judgement were released today (Smith v. Tedford) highlighting this fact.  In this case Mr. Justice Grist made the following observations:

[3]                Once pled as an issue by the defendant, damages will be limited if the defendant can show the plaintiff failed to take steps a reasonable person would have taken to mitigate or lessen the loss. In the case of a personal injury trial, this would include recommended treatment or therapy if pursuing the treatment is a reasonable course in the circumstances and can be proven to likely have had efficacy.

[4]                In my view, the financial circumstance of the plaintiff falls into the overall consideration of reasonableness. If the plaintiff is of modest means, the expensive therapy may be a significant factor. The fact that such a plaintiff has been denied coverage for the therapy under the universal motor vehicle coverage provided under Part 7, is in my view, a factor for consideration when failure to mitigate of this sort is alleged. This coverage, as being ordinarily available to those injured in motor vehicle collisions, may well be assumed by a jury hearing such a case. Therefore, where there has been a request for coverage, the response becomes relevant.

[5]                This is not a case of putting ICBC on trial.  It is a matter of responding to a defence issue by reference to the plaintiff’s resources and whether it was reasonable to pursue the recommended treatment. Further, a full response to the issue is not necessarily made simply by the Plaintiff indicating a lack of resources in her evidence. As here, and as it happens in many cases, the plaintiff’s credibility is challenged and the ability to rely on confirmation is significant. Further, this is not a matter of determining Part 7 coverage. That is an issue for proceedings after a jury verdict and is quite independent, in my view, of this question.

In another ICBC Injury Claim released today (Job v. Blankers) Madam Justice Ker of the BC Supreme Court penalized a plaintiff for failing to mitigate her damages.  In this case the Plaintiff was found to have mild to moderate soft tissyue injuries and the non-pecuniary loss was valued at $25,000.  This award was then reduced by 10% for failure to mitigate.  In coming to this conclusing the Court made the following analysis:

[110]        In Antoniali v. Massey, 2008 BCSC 1085, Mr. Justice Preston addressed the issue of mitigation of damages at ¶29-50.  In that case, the defendants established that the plaintiff unreasonably failed to embark on an exercise program under the guidance of a personal trainer to rehabilitate herself and reduce or eliminate the continuing effect of her injuries.

[111]        The decision in Antoniali provides a helpful framework for assessing whether the defendant has established that the plaintiff has failed to mitigate her damages in this case.  In order then to conclude that Ms. Job’s damages should be reduced by the application of the principle that a plaintiff has a positive duty to mitigate her injuries, adapting that framework to the circumstances of the present case, I would have to find that the defendant has established:

1.      that a program of massage, physiotherapy and chiropractic intervention at a stage earlier than that undertaken by the plaintiff would have reduced or eliminated the effect of the injuries;

2.      that the reasonable plaintiff in Ms. Job’s circumstances would have followed such a program;

3.      that Ms. Job unreasonably failed to follow such a program and;

4.      the extent to which Ms. Job’s damages would have been reduced if she had followed such a treatment program.

[112]        Applying those factors to the circumstances of this case, I am satisfied the defence has established that Ms. Job failed to mitigate her injuries and symptoms.  Although Ms. Job may have had some financial reasons for failing to follow through on her doctor’s referrals, it appears from her evidence that her refusal to sign the appropriate documentation that ICBC sought contributed to her difficulties in that regard.

[113]        Dr. O’Neill’s evidence that the earlier treatment begins after an accident, the better the prognosis for the patient, and his observation that the plaintiff’s recovery may have been better had she attended earlier, satisfies me that had Ms. Job engaged in earlier treatment of her injuries as directed by her family physician in August and October 2007, she would have likely reduced the disability that she has experienced as result of the injuries.

[114]        I find that the plaintiff failed to take reasonable steps to mitigate the physical effects of the injuries sustained in the collision by failing to undertake the treatment regime recommended by her physician at the time the recommendation was made.  On the evidence of Dr. O’Neill, this was likely an impediment to achieving an earlier recovery.  Ms. Job had an obligation to assist in her recovery, even if it meant some initial financial hardship in terms of ability to pay for the treatments.  The burden of establishing a failure to mitigate is on the defendant.  I find that the defendant has met the onus in this case and has established that the plaintiff did not take all reasonable steps towards assisting in her recovery by failing to engage in treatment at the time her physician recommended she do so.

[115]        Accordingly, I reduce her award for non-pecuniary damages by 10% to reflect her failure to mitigate those damages in these circumstances.

[116]        In the end, there will be an award of $22,500 ($25,000 less 10% for failure to mitigate) in non-pecuniary damages.

One of the principles of tort law is that of mitigation.

If you are injured through the fault of another you have a duty to take reasonable steps to minimize your losses.  For example, if your doctor makes treatment recommendations and you refuse to follow these this can result in a ‘failure to mitigate’ argument by an ICBC Defence Lawyer.  If such an argument succeeds the court can reduce the amount of damages according to the severity of the failure to mitigate.

Reasons for judgement were released today discussing and illustrating this principle.e   In today’s case (Korosic v. Maitland) the trial judge found that the Plaintiff failed to mitigate her injuries and reduced damages accordingly.  The key discussion was set out at paragraphs 122-132 which I reproduce below:

Mitigation

[122]        The defendant contended that Ms. Kosoric had a positive duty to mitigate and, in failing to perform the strength and conditioning exercises recommended by her physicians and physiotherapists, she could have reasonably avoided some part of her loss.  The defendant agreed that they bear the onus of proof on this issue. 

[123]        The concept of mitigation was discussed in Graham v. Rodgers, 2001 BCCA 432, 90 B.C.L.R. (3d) 69, leave to appeal to ref’d [2001] S.C.C.A. No. 467.  The purpose of mitigation is to limit the recovery of an injured party based on their failure to take reasonable steps to minimize or limit their loss: see para. 35.  As the defendant submits in their argument, a plaintiff has a positive duty to mitigate in personal injury actions; however, if a defendant argues a plaintiff may have reasonably avoided some of the loss, they bear the onus of proof: see para. 35. 

[124]        In situations where a plaintiff has not followed a course of recommended medical treatment, a defendant must prove two things: the plaintiff acted unreasonably in eschewing the recommended treatment, and the extent, if any, that the plaintiff’s damages would have been reduced had they acted reasonably: Chiu v. Chiu, 2002 BCCA 618, 8 B.C.L.R. (4th) 227 at para. 57, citing Janiak v. Ippolito, [1985] 1 S.C.R. 146.   In Chiu, the court of appeal overturned the trial judge’s decision to reduce damages by 10% on account of the plaintiff’s failure to mitigate his damages.  In overturning this part of the decision, the court stated that the defendant did not pursue cross examination of the plaintiff with respect to his failure to engage in counselling, nor did the defendant adduce any medical evidence demonstrating the consequences of the failure, on the part of the plaintiff, to obtain more counselling.  There was simply no evidence indicating the effect of counselling and whether it would have accelerated the plaintiff’s recovery or had other positive impacts. 

[125]        Conversely, in Briglio v. Faulkner, 1999 BCCA 361, 69 B.C.L.R. (2d) 122, rev’g , in part, 1996 Carswell BC 1818, the Court of Appeal upheld the trial judge’s decision to reduce the damages by 10%, as a result of the plaintiff’s failure to engage in a recommended exercise program.  At trial, the judge accepted medical evidence which stated that a structured exercise program would have assisted in the improvement of the plaintiff’s fibromyalgia condition.  The plaintiff’s failure to engage in such exercise “likely had some negative effect on her condition”: trial decision at para. 148. 

[126]        In Kero v. Love, 90 B.C.L.R. (2d) 299, CarswellBC 179 (C.A.), the Court of Appeal upheld a jury’s decision to deduct a 25% contingency ($40,000) from a damages award.  The court found that it was reasonable for the jury to make such a decision in light of the plaintiff’s failure to follow a prescribed exercise regime or seek alternative employment which would have been less stressful on his back. 

[127]        In the instant case, the defendant submitted that Ms. Kosoric failed to mitigate her loss through her failure to follow and adhere to an exercise routine, as outlined by her physicians and physiotherapists.  The defendant further argued that Ms. Kosoric was continually reminded of the need to continue with an exercise program and the likely (positive) effects of such a program.  Ms. Kosoric acknowledged, in cross examination, that her physiotherapist had told her that her spine strength could improve through exercise, which would assist her college studies with less disruption.  Furthermore, Drs. Mitha and le Nobel both instructed Ms. Kosoric, on a number of occasions, to engage in regular strength and conditioning exercises, as it was important for her recovery. 

[128]        Both physiotherapists who submitted reports for trial also made similar recommendations.  In his report, Mr. Rizzardo noted that he instructed Ms. Kosoric to adhere to an exercise program “constantly”, even when she was feeling “close to normal”.  Similarly, Ms. Guglielmini stated that Ms. Kosoric should continue with an exercise programme, involving three sessions per week over a 12 to 15 week period. 

[129]        In the period following the Accident, I acknowledge Ms. Kosoric’s life was difficult, in the sense that she had experienced a traumatic incident that had mental and physical impacts, her mother was diagnosed with cancer and she commenced a difficult and demanding educational program.  However, this does not absolve her of her duty to take reasonable steps to minimize her loss, particularly in light of the fact that the recommendation was conservative and would likely lead to reduced difficulties at school, work and in life generally.  I note that when Ms. Kosoric did perform exercise, there was no aggravation of her injuries nor did it cause additional pain. 

[130]        There is evidence that Ms. Kosoric did perform some exercise since the Accident, however, the evidence also demonstrates this was done infrequently over the past five years.  In her evidence, Ms. Kosoric admitted that the recommended exercise program was not a high priority for her during this period. 

[131]        Based on the evidence, I conclude that following a regular exercise programme would have had positive effects on Ms. Kosoric’s symptoms.  Since the medical evidence does not state the precise effectiveness of exercise, I must therefore determine what role this would have played in improving her symptoms: see Briglio, trial decision, at para. 149. 

[132]        I will take into account the plaintiff’s failure to adhere to an exercise routine in my assessment of non-pecuniary damages.