Reasons for judgement were released recently by the BC Supreme Court, Vancouver Registry, discussing whether the failure to follow through with steroid injections to treat a shoulder injury should result in mitigation of damages in a personal injury claim.
In the recent case (Lim v. Anderson) the Plaintiff suffered an impingement syndrome following a rotator cuff injury sustained in a collision. In the course of recovery she had a steroid injection which provided temporary relief. Her surgeon suggested that the Plaintiff could have further injections although she chose not to follow through with this advice. The Defendant argued the Plaintiff’s damages should be reduced due to this choice. Madam Justice Fenlon rejected this argument and provided the following reasons: A preliminary issue I must decide before assessing damages is whether the plaintiff has failed to mitigate her damages. The defendants must prove that the plaintiff failed to follow recommended treatment by a qualified practitioner that could have overcome or reduced her current or future problems: Papineau v. Dorman, 2008 BCSC 1443. The applicable standard is reasonableness. The defendants must demonstrate that the plaintiff unreasonably refused to follow the practitioner’s recommendations…
Here too, while Dr. Yu listed further injections or surgery as possible further treatments, he did not opine that they would fix the plaintiff’s problems with her shoulders. The injections offered at least temporary relief. The first and only one the plaintiff underwent gave her two months without pain. The plaintiff described the pain relief as “like a miracle”.
It can be implied from the location of the space into which the steroid medication has to be injected, from Dr. Yu’s evidence and from Ms. Lim’s decision not to repeat it every two months despite the relief that followed, that the needle itself is unpleasant. Further, Dr. Yu acknowledged that injections are not always successful and that patients have to balance the pain of the injection against the pain without it. Surgery carries with it risks and time off work.
A plaintiff is only required to do what is reasonable, and I do not find to be unreasonable Ms. Lim’s decision to decline further injections and surgery and to instead use pain medication to control her symptoms.
This judgement can be contrasted with this 2010 decision where a Plaintiff’s damages were reduced by 30% for choosing to follow naturopathic treatment instead of injections/surgery to treat a shoulder injury.
As previously discussed, if a person fails to take reasonable steps to mitigate their damages following a personal injury the compensation they are entitled to is reduced accordingly.
There are some clear examples where a person will not be penalized for failing to mitigate their damages such as when they are financially unable to follow their doctor’s advice. But what about pre-existing religious views? Can a person be penalized by a damage reduction for failing to follow medical advice where their refusal to do so was based on a religious belief? Reasons for judgement were released this week by the BC Supreme Court, Vancouver Registry, discussing this interesting topic.
In this week’s case (Abdalle v. British Columbia (Public Safety and Solicitor General)) the Plaintiff suffered a head injury when he was struck at an intersection by an RCMP cruiser. Fault for the crash was admitted.
In the course of recovery the Plaintiff failed to follow various suggestions made by his medical practitioners. The Plaintiff argued his damages should not be reduced as this failure was based on religious beliefs. Madam Justice Ross did not address the issue head on as she was not satisfied that the Plaintiff’s decisions were based on “sincerely held religious or spiritual objection“. Despite this finding the Court made the following observation about this little tested area of law:
In addition, counsel submits that Mr. Abdalle has spiritual and religious objections to drug use. Counsel submits that adherence to a sincerely held religious belief should not be considered a failure to mitigate damages. In counsel’s submission this should be an application of the principle of tort law that the tortfeasor takes the victim as he finds him.
The medical evidence establishes that the recommended treatments would likely have assisted Mr. Abdalle, that there were no contraindications in his case and that the risks were minimal. Accordingly, unless Mr. Abdalle’s spiritual objections provide a reason to refuse treatment, I conclude that Mr. Abdalle’s refusal to follow the recommendations of his physicians was unreasonable…
It appears that the particular question of whether pre-existing religious beliefs would constitute a reasonable basis for a refusal of medical treatment has not been addressed in this jurisdiction. Jamie Cassels and Elizabeth Adjin-Tettey wrote in Remedies: The Law of Damages, at pp. 292 and 393 that “there is little authority on this issue”, and cite two American decisions as guidance. Neither of these cases have been cited in Canadian jurisprudence. Moreover, from Janiak it is clear that the American position on this issue takes subjective attributes into consideration to a greater degree than in Canada (Janiak, p. 160). Cassels and Adjin-Tettey opine at p. 392 that:
According to the Janiak test, where a medical treatment is otherwise obviously required, religious or ethical objections would not provide an excuse from mitigating unless those objections rendered the plaintiff incapable of choice or could be assimilated to ‘pathological’ conditions.
Ken Cooper-Stephenson also explored this topic in Personal Injury Damages in Canada and expressed a different view. He stated at p. 876 that:
[l]f a pre-existing religious belief or cultural practice inhibits or prevents the plaintiff’s capacity to choose a certain form of treatment…then it is almost certain that the plaintiff will not be adjudged unreasonable in the refusal… Defendants take their plaintiffs as they find them with respect to their religion, their culture, and their socio-economic setting.
He does not, however, provide any Canadian authority in support of this proposition.
Professor Cooper-Stephenson also argues that there is a move towards subjectivism, with one approach including religious belief and cultural practice within the notion of “capacity” fromJaniak. He says, at p. 879, that as for religious belief and cultural practice:
…their recognition as fundamental constitutionally-protected interests in the Canadian Charter of Rights and Freedoms almost certainly requires that they be respected in post-action choices for the purposes of the duty to mitigate.
There are two questions to be addressed in relation to this issue. The first is whether, to what extent, and under what circumstances a religious or cultural belief will be taken into consideration in addressing the plaintiff’s duty to mitigate. As noted above, it appears that the answer to this question may not be settled in Canadian jurisprudence. The second question is whether in the particular case, the plaintiff’s failure to follow a recommended course of treatment is the result of adherence of a religious or cultural belief or practice.
In my view, this is not the case to make a determination with respect to the first question because I have concluded that the factual foundation is simply not made out for the Court to conclude that the reason for the refusal of treatment was a sincerely held religious or spiritual objection on the part of Mr. Abdalle…
In the result, I am satisfied that Mr. Abdalle’s refusal to take the Nortriptyline prescribed by Dr. Dhawan and his failure to follow the recommendation to take facet block injections was not the product of a religious or spiritual objection. In addition, I find Mr. Abdalle’s failure to continue with swimming, to become more active, to attend a further course of physiotherapy, to take the Nortriptyline as prescribed and the facet block injections as recommended was unreasonable in all the circumstances and in breach of his duty to mitigate.
As previously discussed, video surveillance is a reality in personal injury litigation and surveillance depicting a Plaintiff acting inconsistently with their evidence can impact an assessment of damages. Reasons for judgement were released last week by the BC Supreme Court, Vernon Registry, demonstrating surveillance evidence in action.
In last week’s case (Wilkinson v. Whitlock) the Plaintiff was injured in a 2007 collision in Vernon, BC. The Defendant drove through a red light and was found fully at fault for the crash. The Plaintiff suffered from back problems as a result of the collision. In the course of trial the Plaintiff testified as to the effects of these injuries. ICBC introduced video surveillance evidence which gave the impression “of an individual less limited than (the Plaintiff’s) evidence at trial and on discovery would lead one to conclude“. Mr. Justice Barrow provided the following reasons considering this evidence:
There is reason to approach the plaintiff’s evidence with caution. She was defensive and evasive in cross-examination. I accept that anxiety may explain her defensive posture, but it does not account for her tendency not to answer questions directly. I do not, however, take much from these circumstances.
As to the videotape evidence, it is of some assistance. The plaintiff was videotaped in January and February of 2008, May of 2009, and June and October of 2010. The plaintiff’s left hip and groin became, on her description, excruciatingly painful for no apparent reason when she was shopping. Although Ms. Wilkinson could not recall the date of this event, I suspect it was likely in the fall of 2008. Ms. Wilkinson testified that although the pain in her hip or groin varies, it often causes her “to waddle” when she walks as opposed to walking with a normal gait. On examination for discovery she agreed that it caused her to waddle most of the time. She said that it was a particular problem when she walked after driving.
The January and February 2008 videotape evidence is of little assistance – the recordings are brief and do not show the plaintiff walking to any extent. The May 2009 videotape evidence is much more extensive. On May 19, 2009 the plaintiff was at a gas station purchasing flowers. To my eye, her gait appeared normal. On June 14, 2009 the plaintiff was videotaped while at a garden centre, and again her gait appeared normal. A year later, on June 15, 2010, there is videotape of her walking. There is no apparent limp but she does appear stiff and careful in the way she moves. On June 17, 2010 Ms. Wilkinson was videotaped walking to her car with a grocery cart full of groceries. She was captured loading the groceries into the hatchback of her vehicle. She did all of that without apparent limitation. On June 19 of that year she purchased a three or four foot tall house plant which she loaded and unloaded from her car, again without apparent limitation. Finally, there is a lengthy videotape of her on June 19, 2010 at a garden centre with Mr. Bains and her daughter. She is captured squatting down, standing up, and walking about the store without noticeable limitation. In summary, the videotape reveals some minor stiffness or limitation on some occasions. There are also occasions when she appeared to have little or no visible limitation. Generally, the impression left by the videotape evidence is of an individual less limited than Ms. Wilkinson’s evidence at trial and on discovery would lead one to conclude.
Mitigation of Damages
This case is also worth reviewing for the Court’s application of the mitigation principle. Mr. Justice Barrow found that the Plaintiff was prescribed therapies that she failed to follow and these would have improved the symptoms. The Court did not, however, reduce the Plaintiff’s damages finding that it was reasonable for her not to follow medical advise given her financial circumstances. Mr. Justice Barrow provided the the following reasons:
Returning to the principles set out in Janiak, and dealing with the second one first, I am satisfied on a balance of probabilities that continued physiotherapy at least during 2008 would have reduced some of the plaintiff’s symptoms and increased her functionality. Further, I am satisfied that the supervised exercise program that Mr. Cooper recommended would have yielded ongoing benefits. I reach this conclusion because Ms. Wilkinson did benefit from both Mr. Saunder’s and Mr. Cooper’s assistance. There is no reason to think those benefits would not have continued and perhaps provided further relief.
The more difficult issue is whether it was unreasonable for the plaintiff to not have followed up on these therapies. She testified that it was largely due to a lack of financial resources. I accept her evidence in that regard. She was in the midst of renovations which were costly. In addition she had lost the assistance that Mr. Harrison was to have provided. The renovations were also time consuming and physically taxing. Further, she underwent a very difficult separation from Mr. Harrison which extracted both a financial and emotional toll. In all these circumstances I am not persuaded that the defendant has established that it was unreasonable for the plaintiff not to pursue a fitness regime more diligently than she did. Most of the impediments to the pursuit of such a program will be no longer exist once this trial is over. I will address the implications of that when dealing with the damages for future losses.
Reasons for judgement were released this week by the BC Supreme Court, Vancouver Registry, reducing a Plaintiff’s damages following a motor vehicle collision for failure to follow medical advice.
In this week’s case (Hsu v. Williams) the Plaintiff was injured in a 2007 rear-end collision. The Plaintiff suffered from chronic pre-existing pain. The Court accepted that the collision aggravated this condition and further that the collision caused a sacroiliac joint injury. Mr. Justice Savage assessed the Plaintiff’s non-pecuniary damages at $30,000 then reduced this award by 1/3 for the Plaintiff’s ‘failure to mitigate’. In doing so the Court provided the following reasons:
In Graham v. Rogers, 2001 BCCA 432 (application for leave to appeal dismissed,  S.C.C.A. No. 467), Rowles J.A.(Huddart J.A. concurring) said at para. 35:
Mitigation goes to limit 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 but if a defendant’s position is that a plaintiff could reasonably have avoided some part of the loss, the defendant bears the onus of proof on that issue. Red Deer College v. Michaels(1975),  2 S.C.R. 324 at 331, 57 D.L.R. (3d) 386 at 390, and Asamera Oil Corp. v. Sea Oil & General Corp. (1978),  1 S.C.R. 633, 89 D.L.R. (3d) 1, provide support for that proposition. In this case, the appellant argues that the respondent did not meet the onus of proof by showing or establishing that the appellant could reasonably have avoided his income or employment losses.
In his very thorough report, Dr. Armstrong gave treatment recommendations. Although he applied a caveat, that “my remarks are my opinions and should not be understood as directives for the provisions of Ms. Hsu’s care” as that would be “at the discretion of her treating physicians and other care providers”, his report is the only medical opinion before the court. Those recommendations included (1) a focused and carefully supervised program of rehabilitative exercise aimed at correcting her sacroiliac joint problem; (2) minimizing passive therapies; (3) supervised stretching and posture improvement under the guidance of a physiotherapist; (4) a progressive program of exercise under the supervision of a physiotherapist to strengthen her core muscles; (5) counselling sessions with a clinical psychologist familiar with chronic pain management; (6) a progressive walking program; and (7) time off work to pursue rehabilitation.
 The plaintiff has largely not followed these recommendations. There is no evidence, for example, that she embarked on a supervised program of rehabilitative exercise, counselling sessions, or has worked on stretching and posture improvement under a professional’s guidance. She did not embark on a progressive program to strengthen core muscles. There is no evidence that she has sought out a clinical psychologist to assist her in chronic pain management. Hsu did not take time off work to pursue rehabilitation. Hsu also continued with, and seeks compensation for, continuing passive therapies.
For example, Hsu claims as special damages acupuncture treatments covering a period from March 2007 to June 5, 2011 ($1,050); massage therapy treatments from 2008-2010 ($1,419); massage treatments in Taiwan ($13,150); massage treatments and a one year gym pass paid for in 2010 ($1,800); acupressure and acupuncture treatments in 2011 ($670.24); undescribed “rehabilitation treatments” ($760); and various prescription medications ($194.72).
Dr. Armstrong’s report was introduced in evidence by the plaintiff. Although Dr. Armstrong says that the opinions are not directives for future care, and that future care should be at the discretion of her treating physicians and other care providers, there are no opinions of those treating physicians or care providers in evidence. So there is no evidence that those treatment recommendations should not have been carried out.
The importance of carrying out those recommendations is significant. Dr. Armstrong opined that the longer chronic sacroiliac joint dysfunction persists, the less favourable is the chance for significant improvement. Although his prognosis if the recommendations were carried out was guarded, in my view the plaintiff should have undertaken the recommendations by the witness she called to give evidence. In the circumstances, the plaintiff has failed to mitigate her damages. I would reduce the general damages award by one-third to account for this factor.
Reasons for judgement were released this week by the BC Supreme Court, Vancouver Registry, discussing credibility and chronic pain claims based on subjective symptoms.
In this week’s claim (Sevinksi v. Vance) the Plaintiff was involved in a 2007 collision. Fault was admitted by the offending motorist focusing the claim on quantum. The Plaintiff sought fairly significant damages for disability due to a diagnosed chronic pain syndrome. Her injuries were largely subjective putting her credibility squarely at issue.
The Court expressed several concerns about the Plaintiff’s credibility noting that “the Plaintiff was not forthright in her evidence….There also appear to have been instances where the plaintiff was not forthright with the independent doctors she attended before” and lastly that “Aspects of (the plaintiff’s evidence) go well beyond a frailty of memory or a natural and excusable tendency to exaggerate or place given evidence in a positive light. Here the Plaintiff sought to mislead and crate a history that is not forthright“.
Despite all this Mr. Justice Voith did accept that the Plaintiff was injured in the collision and that she had ongoing limitations due to these injuries. Non-Pecuniary damages of $60,000 were assessed but this award was then reduced to $45,000 to take into account the plaintiff’s failure to mitigate. In assessing the Plaintiff’s credibility and damages the Court cited the well known passage from Mr. Justice McEachern in Butler v. Blaylok. (making this an opportune place to repeatmy views that the assertion that a higher burden of proof exists in subjective injury claims is questionable.)
Mr. Justice Voith provided the following reasons:
The difficulties with the plaintiff’s evidence are magnified because of the lack of objective evidence to support her injuries. McEachern, C.J.S.C., as he then was, identified the difficulties associated with assessing the extent of an injury without the benefit of objective evidence in each of Butler v. Blaylok Estate  B.C.J. No. 31 (S.C.) at paras. 18-19 and Price v. Kostryba(1982), 70 B.C.L.R. 397 (S.C.) at para. 1-4.
In Maslen v. Rubenstein (1993), 83 B.C.L.R. (2d) 131 (C.A.), Taylor J.A., at para. 15.1, said:
…there must be evidence of a “convincing” nature to overcome the improbability that pain will continue, in the absence of objective symptoms, well beyond the normal recovery period, but the plaintiff’s own evidence, if consistent with the surrounding circumstances, may nevertheless suffice for the purpose.
More recently, in Eccleston v. Dresen, 2009 BCSC 332, at para. 66, Barrow J. accepted that claims supported by only subjective evidence should be viewed with a “skeptical eye”. He further confirmed, however, that such claims can be supported by the “convincing force of collateral evidence”.
Two propositions emerge from these cases. First, there is an inherent level of frailty in the case of a plaintiff whose assertions of injury are not supported by any objective evidence or symptoms. Accordingly, it is appropriate, in such cases, to treat the evidence adduced by or on behalf of the plaintiff with caution. Second, either the evidence of the plaintiff or collateral corroborative evidence may be sufficient to persuade the Court of the plaintiff’s position.
In this case the usual difficulties associated with the wholly subjective complaints of a plaintiff are compounded by the reliability problems which are associated with the evidence of Ms. Sevinski.
Notwithstanding some misgivings, however, I have accepted aspects of Ms. Sevinski’s evidence and am satisfied that these portions of her evidence are supported by additional collateral evidence before me…
Having said this, the medical evidence establishes, and I have accepted, that the plaintiff does struggle with chronic pain syndrome. Her ability to function normally and to engage in the breadth of activities which she would like to, as well as to interact with her children and Mr. Rambold in a pain-free way, is diminished….
Based on these considerations I assess Ms. Sevinski’s non-pecuniary damages at $60,000. This is without taking the question of mitigation into account.
Reasons for judgement were released yesterday by the BC Supreme Court, assessing damges for non-pecuniary loss (pain and suffering and loss of enjoyment of life) for an L4-5 disk herniation.
In yesterday’s case (Doho v. Melnikova) the Plaintiff was involved in two seperate collisions. Fault was admitted in both actions leaving the Court to assess damages. The first collision caused a disk injury at the 4-5 level of the Plaintiff’s lower spine. The second collision resulted in a minor aggravation of this.
The prognosis for recovery was poor and the Plaintiff was expected to experience ongoing pain and discomfort in his lower back as a result of the first collision. In assessing non-pecuniary damages at $80,000 for the first collision Mr. Justice Rogers provided the following reasons:
The first accident caused a significant injury to Mr. Doho’s lower back. He sustained a disk hernia at the L4-5 level of his spine. That hernia impinged on his spinal nerves and caused him severe pain for the first three or four months after the accident. He also suffered from headaches and a sore neck. Those latter symptoms resolved by three months after the accident. Mr. Doho’s leg pains dissipated by approximately four months after the accident, but he was left with ongoing low back discomfort. His pain is increased by lifting, playing sports such as golf, standing or sitting for lengthy periods of time. Because surgery is not an option at this point, I have concluded that Mr. Doho’s condition is permanent.
I find that Mr. Doho’s non-pecuniary damages arising out of the November 2006 accident should be assessed at $80,000.
This case is also worth reviewing for the Court’s discussion of the principle of ‘failure to mitigate‘ at 49-53.
Reasons for judgement were released this week by the BC Court of Appeal providing a useful summary of the law of mitigation of damages in the context of a personal injury lawsuit.
In this week’s case (Gregory v. ICBC) the Plaintiff was involved in a 2006 collision in White Rock, BC. She was injured and sued for damages. At trial her damages were assessed at just over $140,000 and then reduced by 10% for an alleged ‘failure to mitigate‘. In short the trial judge held that the Plaintiff unreasonably failed to follow her doctor’s recommendation to have cortisone injections.
The Plaintiff appealed this deduction arguing that there was no evidence before the Court that these injections would have improved the Plaintiff’s symptoms. The BC Court of Appeal agreed and overturned this deduction. In doing so Madam Justice Garson provide the following short but useful discussion of the law of mitigation of damages in personal injury lawsuits:
In Chiu v. Chiu, 2002 BCCA 618 at para. 57, this Court set out the test for failure to mitigate as follows:
 The onus is on the defendant to prove that the plaintiff could have avoided all or a portion of his loss. In a personal injury case in which the plaintiff has not pursued a course of medical treatment recommended to him by doctors, the defendant must prove two things: (1) that the plaintiff acted unreasonably in eschewing the recommended treatment, and (2) the extent, if any, to which the plaintiff’s damages would have been reduced had he acted reasonably. These principles are found in Janiak v. Ippolito,  1 S.C.R. 146.
I would describe the mitigation test as a subjective/objective test. That is whether the reasonable patient, having all the information at hand that the plaintiff possessed, ought reasonably to have undergone the recommended treatment. The second aspect of the test is “the extent, if any to which the plaintiff’s damages would have been reduced” by that treatment. The Turner case, on which the trial judge relies, uses slightly different language than this Court’s judgment in Chiu: “there is some likelihood that he or she would have received substantial benefit from it …”.
In this case the trial judge found as a fact that the cortisone shots were “not necessarily curative, they reduce the inflammation… Sometimes the relief is only temporary but sometimes the injections bring long term benefits”. She did not find that the treatment would have reduced the symptoms. In addition there is the fact that the plaintiff reasonably believed the diagnosis was a tear and that the injections would have no healing effect on a tear.
Regardless of whether the trial judge erred in finding on the evidence that it was objectively reasonable for the plaintiff to undergo the injections, I conclude that she erred in her application of the correct test, as articulated in Chiu. The physicians testified only that it was a reasonable treatment to try, and it might afford some relief. In my view such an opinion does not meet the threshold for reducing an award as described in Chiu.
I would accede to this ground of appeal and reverse the judge’s decision to reduce the award by 10%.
As previously discussed, if you sue for damages as a result of personal injuries you have a duty to minimize you losses. If you fail to take reasonable efforts to do so the damages you are entitled to can be reduced. This legal principle is called “failure to mitigate“.
The most common argument addressing mitigation relates to following doctor’s advice. If a person fails to follow medical advice without good reason their damages can be reduced. Earlier this week the BC Court of Appeal had an opportunity to address an interesting mitigation issue: Does a Plaintiff fail to mitigate their damages when they ignore their doctor’s advice to take time away from work?
In this week’s case (Bradshaw v. Matwick) the Plaintiff was in a 2006 rear-end crash. Following the collision the Plaintiff’s doctor “recommended that the plaintiff stop working and enter into a full-time rehabilitation program. He felt that the plaintiff’s recovery would be hastened by entering into such a program” The Plaintiff did not follow this advice. When asked why he explained that he simply could not afford time away from work testifying that “his financial situation was such that he needed to continue working“. At trial the Plaintiff was awarded just over $268,000 in total damages for his injuries and loss. The Defendant appealed arguing, amongst other things, that the trial judge erred in failing to reduce the damages for the Plaintiff’s failure to follow his doctor’s advice. The BC Court of Appeal disagreed with this argument finding that the Plaintiff’s decision to continue working out of financial need was reasonable. In dismissing this aspect of the appeal the Court provided the following helpful reasons:
 The trial judge found that the plaintiff had acted reasonably in returning to work in August 2006, and that he had generally followed recommendations for rehabilitative exercise:
 In regards to Mr. Bradshaw continuing to work in August 2006, against his doctor’s advice, Mr. Bradshaw had no choice. The plaintiff had a less than accommodating employer. The plaintiff was aware that in order to keep his job, he had to work at his job. It would be reasonable for the plaintiff to conclude based on his job circumstances, that taking a substantial time off to recover would result in the loss of his job. The effects for the plaintiff in this respect would be devastating. He has worked for Rebelle for over twenty years. He has limited reading and writing skills which would make any new job which would require training difficult for him. It was not unreasonable for the plaintiff, in light of this circumstance, to make the decision to struggle on and hope for the best in his recovery while continuing to work.
 Additionally, the plaintiff had significant commitments to a wife and two children. He, at best, earns a moderate to good income in the $50,000 range. It is highly unlikely that he could have survived on the modest wage loss funds available to him either through the defendants’ insurer or through the employment insurance program. His wife, Ms. Bennett, has only ever worked part-time and although she no doubt contributes to the family expenses, the household consists of two adults, and two children, in a home they own with a mortgage.
 On appeal, the defendants point to evidence from the plaintiff’s doctor to the effect that he would have given the plaintiff a medical note recommending full-time rehabilitation if one had been requested, and to the employer’s evidence that it would have given the plaintiff a leave of absence if such a note had been provided. They also argue that the plaintiff presented only minimal evidence of his financial position in August 2006, and contend that the trial judge relied on inadmissible hearsay. The defendants say that, in the face of that evidence, the judge’s finding that it was reasonable for the plaintiff to return to work represents a palpable and overriding error.
 I am unable to accept the defendants’ assertion. There was considerable evidence concerning difficulties in the relationship between the plaintiff and his employer. In the circumstances, it was open to the trial judge to accept that the plaintiff had a reasonable apprehension that he might lose his employment if he did not return to work. While the evidence of the plaintiff’s precise financial position in August 2006 was limited, there was sufficient information before the trial judge to allow him to conclude that the plaintiff’s financial position was not sufficiently secure to allow him to risk losing his job.
 In any event, even if it had been unequivocally established that the plaintiff’s recovery was delayed by his decision to return to work in August 2006, it would not prove that the decision resulted in an exacerbation of his damages. The plaintiff’s immediate wage losses were significantly reduced by his decision to return to work. It is not at all apparent that any consequential increase in his non-pecuniary losses or subsequent wage losses would have offset the immediate gains. Thus, the defendants have failed to show that the decision to return to work in August 2006 resulted in any net increase in the plaintiff’s damages.
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:
 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.
 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.
 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), Limited2009 BCSC 798.
 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.
 There will be a reduction of damages of 25% for failure to mitigate.
(Update March 8, 2012 – The case discussed below was set for a new trial after the Court of Appeal found the trial judge made errors applying the law of mitigation, causation and credibility. The Court of Appeal Judgement can be foud here) Browne v. Dunn is an English case that’s almost 120 years old. Despite it’s vintage its a case all British Columbian’s should be familiar with when going to trial.
The rule in Browne v. Dunn states that if you intend to contradict an opposing witness on a significant matter you must put the contradictory version of events to the witness on cross examination. Failure to do so permits the Court to prefer the witness’ version over the contradictory version. In practice, failure to follow the rule of Browne v. Dunn can prove damaging to a case and this was demonstrated in reasons for judgement released today by the BC Supreme Court, Vancouver Registry.
In today’s case (Wahl v. Sidhu) the Plaintiff was involved in a significant collision in Surrey, BC in 2006. The Plaintiff sustained various injuries. At trial he sought over $1.1 million dollars. Much of his claim was dismissed but damages of $165,000 were assessed to compensate him for physical and psychological injuries from the crash.
During the course of the trial the Defence lawyer argued that the Plaintiff was not credible and was exaggerating his claim. The lawyer relied on evidence from various treating medical practitioners who had negative opinions about the Plaintiff’s efforts and argued that “the plaintiff is intentionally faking symptoms“. The Defence lawyer did not, however, cross examine the Plaintiff with respect to these witnesses allegations. Mr. Justice Chamberlist relied on the rule in Browne v. Dunn and refused to place any weight on these challenges to the Plaintiff’s credibility. Specifically the Court provided the following useful comments:  … I wish to comment on what occurred and what did not occur with respect to the evidence of Mr. Wahl at trial. My notes of his evidence, particularly his evidence given under cross-examination, indicate that negative comments made by the various treators and Mary Richardson and Gerard Kerr were not put to him under cross-examination so that he would have an ability to deal with that evidence. It is my view that the witness must be confronted with these opinions before the opinion can be properly dealt with (Browne v. Dunn, (1893) 6 R. 67 (H.L.)). This is especially required in a case such as this where the defence submits that the plaintiff, in this case, is not motivated to get better and that the credibility of the plaintiff is at issue. The defence, in this case, called Dr. Bishop as a witness. …As indicated earlier Dr. Bishop was originally retained by the plaintiff but did not call Dr. Bishop at trial. The defence made a point of filing Dr. Bishop’s reports and defence called her evidence as part of its case. In the defence written submissions, the defence maintains that “her evidence makes it clear that she is of the opinion that the plaintiff is intentionally faking symptoms”….
 It is important to note the first lines of the evaluation of effort where Dr. Bishop said, and I repeat:
. . . Although effort testing of itself cannot determine motivation as submaximal effort may be multifactorial in origin (e.g. fear of pain, anxiety with regard to performance, perception of dysfunction, need to demonstrate distress, etc) . . .
That finding cannot be relied upon, in my opinion, by the defence when the particulars of those conclusions were not put to the plaintiff when he was on the stand….
When not writing the BC Injury Law Blog, Erik is the managing partner at MacIsaac & Company, based in Victoria, B.C. He is also involved with combative sports regulatory issues and authors the Combat Sports Law Blog.
This blog is authored by personal injury and ICBC Claims lawyer Erik Magraken. Use of the site and sending or receiving information through it does not establish a solicitor/client relationship. The views expressed and the content provided on this blog is for nonprofit educational purposes. It is not, and is not intended to be, legal advice on any specific set of facts. The use of this website does not create a solicitor-client (attorney-client) relationship. If you require legal advice, you should contact a lawyer directly.