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$50,000 Non-Pecuniary Assessment for "Myofascial Pain Syndrome"; Rule 15 Soft Cap Exceeded

Written by admin on . Posted in BCSC Civil Rule 15, ICBC Soft Tissue Injury Cases, Uncategorized.

Adding to this site’s expanding database for BC soft-tissue injury assessments, reasons for judgement were released last week by the BC Supreme Court, Vancouver Registry, addressing damages for chronic soft tissue injuries with a poor prognosis.
In last week’s case (Bissonnette v. Horn) the Plaintiff was involved in a 2007 collision.  Fault was admitted focusing the trial on damages.  The Court found that the Plaintiff suffered various soft tissue injuries involving her beck, back hip and leg.  The injuries continued to cause difficulties to the time of trial and were expected to linger into the future.  In assessing non-pecuniary damages at $50,000 Madam Justice Gray provided the following reasons:

[74] I accept the evidence of Dr. Frankel that Ms. Horn continues to suffer with left hip, neck, left leg, and lower back pain, disturbed sleep patterns, headaches, anxiety, and weight gain as a result of her motor vehicle related injuries. I also accept his opinion that, as these symptoms have continued for over four years since the accident, her prognosis for full recovery is guarded. Dr. Chu testified that the prognosis was fairly good for Ms. Horn’s widespread myofascial pain syndrome and that it usually responds to active exercise and treating sleep or mood disturbances. I accept this evidence as well….

[76] Ms. Horn’s continuing pain has diminished since the accident, but remains significant enough to affect her work, recreation, and sleep. She suffered other symptoms closer to the accident, including severe headaches, a broken tooth, and a finger injury.

Global damages of just over $100,000 were awarded demonstrating the soft cap in action set out for fast track trials in Rule 15.  This is not the first time this has happened since the new rules came into force and also confirms the disjunctive nature of Rule 15 allowing for the prosecution of claims over the $100,000 damage cap.

Court Refuses To Sever Liability From Quantum Where Damages Disputed

Written by admin on . Posted in BCSC Civil Rule 12, ICBC Liability (fault) Cases, Uncategorized.

Reasons for judgement were released recently by the BC Supreme Court, Vancouver Registry, (Hou v. McMath) refusing to sever liability from quantum in a personal injury trial where the Defendant not only disputed fault but also took the position that “no compensable injury” occurred.
Interestingly the Court did go on to proceed on the issue of ‘fault’ without making a formal negligence finding.  In doing so Madam Justice Kloegman provided the following reasons:
[2] Both parties desired to sever the issue of liability from damages and proceed on the question of liability alone. However, due to the defendant’s position that this accident caused no damage or compensable injury to the plaintiff, I refused to make an order severing liability from quantum. It is basic tort law that without damages there can be no finding of negligence or liability. I suggested instead that we proceed to hear viva voce evidence on the sole issue of “fault” for the accident; that is, who breached the standard of care of the reasonable, prudent driver in the circumstances?
The trial focused on the colour of the light in an intersection collision ultimately finding that the Defendant drove through a red light finding him at fault for the crash.

$250,000 Non-Pecuniary Assessment for "Open Book" Pelvic Fracture

Written by admin on . Posted in ICBC Pelvis Injury Cases, Uncategorized. 60 Comments on $250,000 Non-Pecuniary Assessment for "Open Book" Pelvic Fracture

Reasons for judgement were released last week by the BC Supreme Court, Vancouver Registry, assessing damages for multiple injuries sustained in 4 motor vehicle collisions.
In last week’s case (Scoates v. Dermott) the Plaintiff was involved in multiple collisions.  He was found faultless for all of them.  The collisions resulted in numerous injuries the most serious of which was an ‘open book‘ pelvic fracture.  The consequences of his injuries disabled him from his own occupation as an ambulance attendant and largely disabled him from any other occupation.  In assessing non-pecuniary damages at $250,000 Mr. Justice Smith provided the following reasons:

[171] In Stapley v. Hejslet, 2006 BCCA 34 at para. 46, the Court of Appeal set out a non-exhaustive list of factors to be considered including: the age of the plaintiff; the nature of the injury; the severity and duration of pain; the degree of disability; the impairment of family, marital, and social relationships; and loss of lifestyle.

[172] Reference to any and all of those factors in this case reveals a profound impact. The initial injuries and their immediate aftermath were horrific.  Although the plaintiff’s recovery was remarkable in some respects, his ongoing pain and disability, combined with the psychological difficulty and frustration of adjusting to that pain and disability, are likely to have severe adverse effects for the rest of his life.  Those effects will be felt in all his daily activities and in his family and social life.

[173] An additional factor in this case is the extent to which the plaintiff is affected by the loss of his pre-injury career.  The loss of income is, of course, separately compensated, but the plaintiff so enjoyed his job, and defined himself so much in reference to that job, that his inability to return to work as a paramedic magnifies his loss of enjoyment of life.

[174] I have considered the cases of Grewal v. Brar, 2004 BCSC 1157, Izony v. Weidlich, 2006 BCSC 1315, Lines v. Gordon, 2006 BCSC 1929,  Dikey v. Samieian, 2008 BCSC 604, andZawadzki v. Calimoso, 2010 BCSC 1952. Considering the awards made in those cases, comparing the injuries in those cases to those in this case, and most important, considering the individual circumstances of the this plaintiff and the impact of his injuries on his life, I find  an appropriate award of non-pecuniary damages to be $250,000.

[175] In awarding non pecuniary damages of $250,000, I have not overlooked the submission of defence counsel that cases awarding non-pecuniary damages below the upper limit but in excess of $200,000 frequently involve a finding of ongoing effects from organic brain injury.  Although I have found the plaintiff’s cognitive, emotional and personality difficulties may result from the complex interaction of chronic pain and depression, rather than organic brain injury, the intractable nature of those problems makes the distinction largely irrelevant.

More On Withdrawing Admissions of Liability

Written by admin on . Posted in BCSC Civil Rule 7, ICBC Liability (fault) Cases, Uncategorized. 47 Comments on More On Withdrawing Admissions of Liability


As previously discussed, Rule 7-7(5) canvasses the BC Supreme Court’s authority to allow a party to a lawsuit to withdraw a formal admission made the course of litigation.
A common admission canvassed under this rule deals with fault following a crash.  Occasionally ICBC admits fault on behalf of a Defendant and for various reasons wishes to withdraw such an admission as the lawsuit progresses.  Reasons for judgement were released this week by the BC Supreme Court, Vancouver Registry, dealing with such a scenario.
In this week’s case (Goundar v. Nguyen) the Plaintiff was involved in a 2008 collision.  ICBC initially denied fault on behalf of the Defendant.  In the course of the lawsuit the Defendant’s lawyer ‘inadvertantly’ agreed to admit liability on behalf of the Defendant and an amended Response was filed.
The Defendant brought an application to withdraw its admission.  In allowing this the Court found that the admission was made inadvertently and provided the following reasons:

[35] Rule 7-7(5) provides:

A party is not entitled to withdraw…

(c) an admission made in a pleading…

except by consent or with leave of the court.

[36] The cases to which I was referred dealing with withdrawal of admissions treat admissions made by inadvertence with caution.  Many of the cases deal with deemed admissions through failure to respond to a Notice to Admit.  However, the considerations remain the same.  The court will consider if the admission was made inadvertently, if it is in the interests of justice to allow the issue to be resolved by a trial, and if there will be no prejudice to the party which cannot be compensated by costs.  If satisfied of those factors, leave to withdraw such an admission will generally be granted. (Abacus Cities Ltd. v. Port Moody [1980] B.C.J. No. 1749 and cases cited therein).

[37] The balancing of the interests of justice requires the applicant to show that there is a triable issue in respect of the admission.  The chambers judge must not make a final determination, but will simply determine if there is an issue worthy of being tried.  Prejudice resulting only from the benefit of relying on the admission occasioned by the inadvertence is not of significance (Can-Am, supra)…

[42] I am satisfied there is a triable issue on liability, based on the information put before me as to Goundar’s allegations, potential evidence from Maharajh, and Nguyen’s ticket on the one hand, and Nguyen’s and Stewart’s evidence on the other.  As well, Nguyen has her own action which is still outstanding.  There is a conflict in the evidence about the collision, which should be resolved by a trial.

[43] Although the plaintiff says the relevant admission was made deliberately and with no new facts available, that is not borne out by the affidavit material.  The lawyer has set out clearly how she came to make this admission in the face of her own assessment of the case and contrary instructions.  She admits she did not remember her instructions had changed and she did not conduct a review of the file before following a prompt from her paralegal to follow up on ICBC’s original letter.  The initial suggestion by ICBC to canvass plaintiff’s counsel regarding the proposal was made without the benefit of Mr. Stewart’s evidence, and the relevant instructions not to admit liability were in place at the time the lawyer amended the Response to admit liability.  I am satisfied that the defendant has demonstrated that the admission was made inadvertently.

[44] As for the balancing of prejudice, nothing irrevocable has been done that cannot be compensated for in costs.  The interests of justice require that this unfortunate situation be set back on track rather than allow the Goundar action to proceed on an untested and possibly erroneous foundation which has come about as a result of a mistake.

[45] If the admission of liability is left in place, the possibility of future remedies exists through an action by ICBC against the lawyer, and also possibly by Nguyen against ICBC for failure to defend her in this action.  However, that is not a satisfactory approach.  Goundar’s action would still be predicated upon a mistaken admission, and the interests of justice are not served by failing to rectify a mistake in circumstances where any prejudice can be compensated for in costs.

[46] The delay in bringing the application, once the lawyer became aware of her mistake, is not inordinate.  The trial date is four months away, which allows time for additional discovery.  While the deadline for expert reports is approaching, any prejudice arising from that factor can be compensated for in costs, as set out below.

[47] Goundar says this case is taken outside the usual bounds of withdrawals of admissions by the bargain she struck – discontinuing the action against Stewart in exchange for an admission of liability on behalf of Nguyen.  The defendants must be held to their bargain.  However, the Court of Appeal held in Drake (Guardian ad litem of) v. Clark (1996) 31 B.C.L.R. (3d) 289 that it is no longer necessary for the doctrine of promissory estoppel to be invoked in applications to withdraw admissions.  Withdrawal may be made if it is in the interest of justice.  As well, in this case, unlike Phil Whittaker Logging Ltd., supra, and the other cases referred to by the plaintiff, the admission was made inadvertently.

$80,000 Non-Pecuniary Damage Assessment For Aggravation of Pre-Existing Back Pain; Indivisible Injuries Discussed

Written by admin on . Posted in ICBC Back Injury (soft tissue) Cases, ICBC Soft Tissue Injury Cases, ICBC Whiplash Cases, Uncategorized.

Reasons for judgement were released last week assessing damages for a permanent aggravation of pre-existing back and neck injuries as a result of a collision.
In last week’s case (Delgiglio v. British Columbia (Public Safety and Solicitor General)) the Plaintiff was involved in a 2009 collision.  His vehicle was struck by an RCMP cruiser that ran a red light.  The Defendant motorist claimed the crash happened due to faulty brakes but the Court rejected this suggestion and found the officer fully at fault.
The Plaintiff suffered from various pre-existing injuries including chronic back pain.  Despite this he was able to work.  Following the 2009 collision his injuries were aggravated and disabled the Plaintiff from his occupation as a truck driver.  The Plaintiff’s disability was expected to continue.   In assessing non-pecuniary damages at $80,000 Madam Justice Gropper made the following findings:

[91] The evidence supports, and I have found, that Mr. Del Giglio suffered a re-aggravation of his neck and lower back pain in the January 2009 accident. He has reached a plateau in his recovery. He has not returned to his baseline level of activity which he enjoyed before the accident. He has not returned to his pre-accident level of pain. Though initially optimistic, Mr. Del Giglio’s physicians are all of the view that his prognosis is “guarded at best.”

[92] Mr. Del Giglio has suffered pain and loss of enjoyment of his life. The injuries have had a serve impact. I accept that Mr. Del Giglio’s pain has been distressful and have affected his emotional state. Despite Dr. Monk’s not having diagnosed depression, Dr. Purtzki did find such symptoms, which are anticipatable, given the reduction in the activities, including the ability to work, which Mr. Del Giglio has experienced.

[93] On the other hand, Mr. Del Giglio has been able to maintain his musical career, a vocation that he clearly thrives upon. That is a factor which I will take into account.

[94] A further factor is that Mr. Del Giglio is aging and some deterioration in his cervical spine is, in Dr. McKenzie’s words, “not uncommon.”  I accept that he would have had some increased pain at some point, but the accident accelerated the onset…

[97] Having reviewed the cases provided, I conclude a fair and reasonable award for non-pecuniary damages is $80,000.

In addition to the above this case is worth reviewing for the Court’s discussion of indivisible injuries at paragraphs 73-86 of the reasons for judgement and the arguments of defence regarding the effects of a release for a previous collision contributing to an indivisible injury.

Unfairness of Indivisible Injury Assessment Remedied Through Apportionment, Contribution and Indemnity

Written by admin on . Posted in Uncategorized.

The law in BC has developed to permit a Plaintiff who sustained ‘indivisible injuries‘ caused by multiple defendants to seek full compensation from any of the at fault parties.  Useful reasons for judgement were released last week by the BC Supreme Court, Vancouver Registry, demonstrating this reality and finding that any unfairness arising from such a result can be remedied through apportionment, contribution and indemnity as between the Defendants.
In last week’s case (Scoates v. Dermott) the Plaintiff suffered injuries in 4 separate collisions.  The first was the most serious causing multiple orthopaedic injuries.  The subsequent collisions were more minor in nature causing an aggravation of injuries.   After canvassing the law of indivisible injury compensation at length Mr. Justice Smith provided the following reasons and interestingly went on to note that an indivisible injury can be divisible with respect to specific heads of damage:

[161] Counsel also argues that it would be unfair to the Defendant Carse to hold him jointly and severally liable for all of the injuries the Plaintiff has suffered.  In Bradley, the Court of Appeal recognized that such an unfairness may result from a finding of indivisible injury, but can be remedied through the rights defendants have against each other (at para. 36):

It may be that this represents an extension of pecuniary liability for consecutive or concurrent tortfeasors who contribute to an indivisible injury.  We do not think it can be said that the Supreme Court of Canada was unmindful of that consequence.  Moreover, apportionment legislation can potentially remedy injustice to defendants by letting them claim contribution and indemnity as against one another.

[162] I therefore conclude that the second accident contributed to an indivisible injury and the defendant Carse is jointly and severally liable to the plaintiff.  I will deal with the question of apportionment later in these reasons.

[163] The third and fourth accidents each caused a temporary aggravation in the plaintiff’s generalized pain. It is not possible to identify a precise date when the aggravation from each of the third and fourth accidents ended and the plaintiff’s pain returned precisely to a previous baseline.  The subjective nature of pain and the physical and psychological factors that contribute to it are simply too complex for such an assessment.  In my view, that is precisely the scenario the Court of Appeal was addressing when it said in Bradley (at para. 34):

If an injury cannot be divided into distinct parts, then joint liability to the plaintiff cannot be apportioned either. It is clear that tortfeasors causing or contributing to a single, indivisible injury are jointly liable to the plaintiff.

[164] Bradley discusses the concept of indivisibility in a physical sense – injuries to the same part of the body that cannot be divided into distinct parts.  But there appears to be no reason in principle that a physically indivisible injury may not be divisible for the purpose of specific heads of damage.  The basic rule remains that defendants cannot be held liable for losses they played no part in causing.

[165] The third and fourth accidents temporarily increased the plaintiff’s pain and suffering and must be seen as contributing to an indivisible injury for purposes of assessing non-pecuniary damages.  But those accidents played no part in the plaintiff’s loss of income, inability to return to his former occupation or his loss of earning capacity.

[166] By the time of the third accident, the plaintiff had not worked for approximately 18 months and it was clear that he would never be able to return to work as a paramedic.  A vocational consultant, Mr. Carlin, said in November 2009, that the plaintiff was not competitively employable for full time work and that his return to the work force in any capacity was “problematic”.  Although Mr. Carlin’s report was not written until November 2009, it was based on an interview and tests conducted June 18, 2009 – 10 days before the third accident.

[167] Similarly, Dr. Stewart said in September 2009 that it was unlikely the plaintiff would return to the workforce to any significant degree.  That was also based on an examination that predated the third accident.  The report was written after the third accident, but makes no reference to it.

[168] Accordingly, I find that the plaintiff’s income loss and loss of earning capacity are divisible in regard to the second and third accident.  Similarly, there is no evidence that the last two accidents have played any causative role in the plaintiff’s need for future therapies and other items that will be considered under the cost of future care.

[169] I therefore find that the defendants Nicole Braddick, Beverley Braddick and Melanie Jones contributed only to the plaintiff’s non-pecuniary damages and their joint and several liability to him is limited to those damages.  Similarly, the plaintiff’s past income loss must be divided between the periods before and after the second accident.  The defendant Carse is jointly and severally liable only for the losses incurred in the latter period

$60,000 Non-Pecuniary Damage Assessment for Shoulder Impingement Syndrome

Written by admin on . Posted in ICBC Shoulder Injury Cases, Uncategorized.


Adding to this site’s archived posts of BC non-pecuniary damage awards for shoulder injuries, reasons for judgement were released last week by the BC Supreme Court, Vancouver Registry, assessing damages for soft tissue injuries and an impingement syndrome.
In last week’s case (Sandhar v. Rolston) the Plaintiff was injured in a 2004 rear-end collision.  Fault was admitted by the offending driver.  The trial focused on the value of the Plaintiff’s claim.  The Plaintiff suffered a soft tissue injury to her neck and an impingement syndrome to her right shoulder.  The symptoms largely recovered by 2007 following a cortisone injection although she had some lingering symptoms.
Complicating matters, the Plaintiff injured her right shoulder shovelling snow in 2008.   She injured her rotator cuff.  Mr. Justice Affleck found this was a ‘divisible injury‘ and assessed damages accordingly.  In awarding $60,000 for non-pecuniary damages the Court provided the following reasons:

[53] In Hussack v. Chilliwack School District No. 33, 2011 BCCA 258, the court observed that decisions of the court on the question of an intervening cause, “say that if an injured party acts unreasonably and causes him or herself further injury, the tortfeasor is not responsible for any injuries suffered as a result of the second injury.” It was not reasonable for the plaintiff to have shovelled snow in the fashion that she did in 2008. Even if the injuries from that activity were indivisible, I would not award damages for them.

[54] That does not mean compensation for the injuries from the car accident is cut off from the date the plaintiff shovelled snow. If the car accident injuries continued to have their effects after December 2008, the defendant remains liable to compensate the plaintiff for those effects. See Dudek v. Li, 2000 BCCA 321.

[55] There has been no mechanical derangement of the plaintiff’s neck and shoulder caused by the car accident. I accept Dr. Leith’s view that the plaintiff’s injuries were soft tissue injuries of the “whiplash” variety. The evidence is that the whiplash was properly characterized as grade one. That is the least damaging form of a whiplash injury. That does not mean the injuries were insignificant. On the contrary, they caused pain and measure of disability from May 2004 until the cortisone injection in April 2007. I accept that slight pain returned later that year and through 2008. Despite the plaintiff’s ability to carry on with work, the plaintiff found it to be uncomfortable to do so. I accept that even if she had not suffered a new injury to her shoulder in December 2008, the pre-existing problems would have lingered even beyond 2008 for perhaps about two years.

[56] I have been provided by the parties with numerous authorities on the assessment of non-pecuniary damages in similar cases. As is usual, none of the plaintiffs in those cases had injuries the same as the plaintiff before me. I take into account the long course of difficulties experienced by the plaintiff which would not have been suffered but for the car accident and that the car accident injuries would have lingered for about six years while gradually diminishing. The three years before the plaintiff had the cortisone injection were difficult, but she did her best to carry on with her employment and with her housekeeping with considerable discomfort. She lost much of her enjoyment of life in those years. She returned to her pre-accident condition after April 2007 and had marked relief of pain for 18 months, but not complete resolution. The plaintiff’s high expectations of herself in her employment, housekeeping and recreational activities, increased the effect of the car accident injuries, but the defendant must accept the plaintiff as she is.

[57] I assess non-pecuniary damages at $60,000…

More on Commercial Host Liability and Excessive Alcohol Service

Written by admin on . Posted in ICBC Liability (fault) Cases, Uncategorized.


As previously discussed, a commercial host can be liable for damages if they serve patrons to the point of intoxication and those patrons then are injured or cause injury to others.  Reasons for judgement were released yesterday by the BC Supreme Court, New Westminster Registry, addressing this topic.
In yesterday’s case (Van Hove v. Boiselle) the Plaintiff was injured in a “fatal motor vehicle accident”.  The defendant was allegedly drunk at the time.  Prior to the collision the Defendant was drinking at the Artful Dodger Pub “to the point that the Defendant became heavily intoxicated“.
The Plaintiff sued the driver for damages.  ICBC, in the defence of the claim, brought Third Party proceedings agaisnt the Pub arguing they were partly at fault for the collision due to over-service.  The Pub brought a summary trial arguing the claims against them should be dismissed.  Mr. Justice Smith refused to dismiss the claim finding the case could not be disposed of by summary trial and dismissed the Pub’s application.  In doing so the Court provided the following reasons:

[16] The duty of care that commercial hosts who serve alcohol owe to the general public arises out of the profit making nature of the enterprise and the well-known dangers associated with the product. It is generally foreseeable that intoxicated patrons may, as a direct result of their intoxication, cause injury to others.

[17] The question then becomes one of the standard of care – whether, in the circumstances of a particular case, the commercial host did what was necessary to fulfill the duty. That inquiry includes the question of the whether the actual circumstances and means of injury were foreseeable.

[18] A plaintiff who proves breach of both the duty and the standard of care must then prove causation – whether the breaches actually caused the injury, which would not have occurred “but for” the negligent conduct of the defendant.

[19] L.J.D. in effect submits that Ms. Boiselle’s safe arrival home proves that the standard of care was complied with and/or proves that the chain of causation was broken. In my view, that ignores the highly fact-specific nature of both inquiries. The proposition that L.J.D. puts forward may well be one the properly applies in many, if not most, cases of this kind, but it cannot be treated as a principle of law that applies regardless of any additional facts that may arise in an individual case.

[20] One such fact in this case, on which I do not have sufficient evidence, is the level of Mr. Goll’s intoxication. If L.J.D.’s employees knew or ought to have known that he was as intoxicated as Ms. Boiselle, or nearly so, it may be open to a trial judge to find, on all of the evidence, that allowing her to leave the pub in his company did not meet the standard of care. It may also be open to a trial judge to find that her arrival home with an equally intoxicated person did not amount to a “safe” arrival within the meaning of the authorities and did not break the chain of causation.

[21] I therefore find myself unable to find the facts necessary to decide this matter on summary trial and the third party’s application must be dismissed.

The High Cost of a Successful WCB Defence in a Personal Injury Lawsuit

Written by admin on . Posted in BC Supreme Court Costs Cases, BCSC Civil Rule 14, Uncategorized.


As previously discussed, Section 10 of BC’s Workers Compensation Act operates to generally strip you of your right to sue if you are injured in the course of your employment by someone else in the course of their employment.  If this defence is raised and succeeds in a personal injury lawsuit the claim will be dismissed exposing a Plaintiff to ‘loser pays’ costs consequences.  Reasons for judgement were released this week by the BC Supreme Court, Victoria Registry, demonstrating this reality.
In this week’s case (McKay v. Marx) the Plaintiff was injured in a 2005 collision.   His vehicle was rear-ended by a Fed Ex vehicle.  The Plaintiff sued for damages.  There was no dispute that the Defendant was in the course of employment when the crash happened.  The defendant argued that the plaintiff was also a ‘worker’ and therefore his right to sue was stripped away.  The issue was sent to WCAT for determination who ruled that the Plaintiff was indeed a worker.
Given WCAT’s findings the Plaintiff’s lawsuit was dismissed.  The Defendant applied for costs and ultimately was successful.  In doing so Madam Justice Dorgan provided the following reasons:

[32] The circumstances in which the plaintiff found himself are unfortunate and they garner some sympathy. However, the authorities explicitly prohibit this court from denying costs by exercising discretion out of a sense of fairness or sympathy or a comparison of the relative economic strength of the parties.

[33] In summary, the defendants successfully pled a s. 10 Workers Compensation Act defence and are thus the substantially successful party ?? the winner of the event. The evidence as presented falls short of demonstrating such reprehensible conduct on the part of the defendants that would allow the court, in the exercise of its discretion, to depart from the general rule. Accordingly, the defendants are entitled to costs.

Mitigation of Damages and Chronic Obesity

Written by admin on . Posted in Uncategorized.


When a Plaintiff fails to take reasonable steps to recover from injury their right to compensation can be reduced accordingly.  Reasons for judgement were released yesterday addressing this topic in the context of pre-existing obesity.
In yesterday’s case (Deligilgio v. British Columbia (Puclic Safety and Solicitor General)) the Plaintiff suffered a back injury as a result of a 2009 collision.  The Plaintiff struggled with obesity.  The evidence suggested that weight loss could help reduce the Plaintiff’s back symptoms.  The Defendant argued that the Plaintiff’s damages should be reduced due to the Plaintiff’s failure to lose weight.
Madam Justice Gropper rejected this argument finding the Plaintiff made “contextually reasonable and sincere efforts” to deal with his weight issues.  In rejecting the Defendant’s argument the Court provided the following sensible reasons:

[87] Once the plaintiff establishes that the defendant is liable for his injuries, the burden shifts to the defendant. In order to prove that the plaintiff did not meet his duty to mitigate, the defence must prove that he acted unreasonably and that reasonable conduct would have reduced or eliminated the loss. Whether the plaintiff acted reasonably is a factual question: Gilbert v. Bottle, 2011 BCSC 1389 at para. 202. Gilbert continues at para. 203:

A relevant circumstance in cases such as this is the plaintiff’s personality and condition before and after the accident. The law does not require a plaintiff to do that which cannot be controlled, nor does it require perfection in the pursuit of rehabilitation. In addition, the defendant must take the victim as found, which may affect what is to be reasonably expected. For example, a person who has struggled with life-long obesity may not be expected to lose substantial weight to discharge the duty to mitigate, even though weight loss would assist recovery. What the law requires is that the plaintiff makes contextually reasonable and sincere efforts to limit his or her damages and loss [citations omitted].

[emphasis added]

[88] The evidence is clear that Mr. Del Giglio has struggled with lifelong obesity. He has attempted to lose weight in accordance with his doctor’s advice and has been somewhat successful. The plaintiff asserts that with assistance, including physiotherapy, kinesiology, the healthy heart program, a dietician and a gym membership he will likely lose weight and build his core strength.

[89] I find that Mr. Del Giglio has made “contextually reasonable and sincere efforts” to lose weight, but would benefit considerably from professional assistance. I disagree with the defendants that his damages should be reduced to reflect his reflected failure to mitigate. The defendants have not proven a failure to mitigate.