Damages Reduced by $35,000 for Failure to Follow Exercise Program
As I’ve recently written, a Plaintiff has a duty to mitigate their losses after being injured otherwise the damages they are entitled to can be reduced.
The most common example of the ‘failure to mitigate’ defence comes up in personal injury claims where defence lawyers argue that a Plaintiff would have recovered more quickly and more completely had they followed through with the suggestions of their medical practitioners. If evidence supporting such an argument is accepted then a Plaintiff’s award can be reduced. Reasons for judgement were released today by the BC Supreme Court, Vancouver Registry, demonstrating this defence in action in an ICBC claim.
In today’s case (Cripps v. Overend) the Plaintiff was involved in a 2006 “t-bone” collision. The Defendant came through a stop sign at high speed and was responsible for the crash. Fault was admitted and the trial focused on the value of the claim. The Plaintiff’s injuries totally disabled him for two months and continued to partially disable him by the time of trial.
Madam Justice Stromberg-Stein assessed the Plaintiff’s damages at just over $141,000 then reduced the award by 25% to account for the Plaintiff’s failure to mitigate. Specifically the Court found the Plaintiff unreasonably failed to follow his physician’s recommendation to undertake an exercise program and had he done so his injuries would have had a better course of recovery. In reaching this conclusion the Court provided the following reasons:
[96] There is evidence to satisfy the onus in this case. Mr. Cripps failed in his duty to mitigate his loss by exercising consistently and getting active. Mr. Schneider provided exercises in 2006. He had abandoned these by the time he saw Dr. Adrian in 2007. Dr. Adrian recommended reconditioning in 2007. There is no proof of any impediment to exercise other than Mr. Cripps felt sorry for himself. Dr. Smith highly recommends vigorous exercise to elevate mood.
[97] The court must reduce damages based on its assessment of the consequences that flow from the failure to mitigate: Tayler v. Loney, 2009 BCSC 742.
[98] The defendants seek a significant reduction of damages in the range of 25% to 40%: Middleton v. Morcke, 2007 BCSC 804; Latuszek v. Bel-Air Taxi (1992), Limited 2009 BCSC 798.
[99] The benefits of exercise were proven when Mr. Cripps began to go to the gym in 2009. Once Mr. Cripps started this exercise program he was a different person. Had Mr. Cripps started and maintained an exercise program as his doctors and physiotherapist urged him to do, it is probable his prognosis would be more favorable. The failure to mitigate implicates not only his physical injuries, but any emotional ones, including irritability that may have contributed to his marriage breakdown.
[100] There will be a reduction of damages of 25% for failure to mitigate.
For more information about the law of mitigation in injury claims you can click here to access my archived posts.