The Inability to Afford Therapy and the Duty to Mitigate 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 all of the suggestions of their medical practitioners. If evidence supporting such an argument is accepted then the Plaintiff’s award can be reduced.
What if a Plaintiff can’t afford to purchase all the therapies/medications recommended by their physicians? Can their damage award be reduced in these circumstances? Reasons for judgement were released this week by the BC Supreme Court, New Westminster Registry, dealing with this issue.
In this week’s case (Trites v. Penner) the Plaintiff, an apprentice plumber, was injured in a forceful rear end collision in 2005. Fault for the crash was admitted by the rear motorist. The trial focused on the value of the Plaintiff’s claim.
The Plaintiff suffered various soft tissue injuries. He followed a course of therapy in the months that followed and enjoyed some improvement in his symptoms. During his recovery ICBC (the Plaintiff’s insurer for ‘no fault’ benefits) discontinued “funding for (the Plaintiff’s) efforts at rehabilitation.”
At trial the Defence lawyer argued that the Plaintiff should have followed through with these therapies in any event and that his damages should be reduced for failure to mitigate. Madam Justice Ker disagreed and took the Plaintiff’s inability to pay for his therapies into consideration. The Court provided the following reasons:
 Financial circumstances are certainly one factor to consider in the overall reasonableness assessment of whether a plaintiff has failed to mitigate their losses. What is reasonable will depend on all the surrounding circumstances. One significant factor in this case however, is that as Mr. Trites was on his upward climb to recovery, ICBC determined that it would discontinue funding his efforts at rehabilitation. As a consequence, Mr. Trites was left to fund his continued rehabilitation on his own. Instrumental to continuing his recovery and functioning was not only attendance at the gym but other treatment modalities including massage therapy and chiropractic treatments and taking prescription medication. All of these items had significant benefits to Mr. Trites but they also carried with them significant costs. In the first half of 2007, Mr. Trites was unable to fund all these aspects of treatment and chose the prescription medication as it was essential to his pain management on a daily basis.
 I find that in these circumstances, Mr. Trites’ decision not to continue with a gym pass on a monthly basis for the first six months of 2007 was not unreasonable. This is not a case where the plaintiff has refused to take recommended treatment. Rather Mr. Trites was engaged in all aspects of the recommended treatments and ICBC was, until December 2006, paying for them. Thereafter ICBC unilaterally discontinued paying for these treatments, notwithstanding the fact that Mr. Trites was not yet fully recovered. I cannot find that Mr. Trites acted unreasonably in determining how best to try and pay for all the treatment modalities that had been working for him in assisting his rehabilitation but were no longer going to be paid for by ICBC and were beyond his limited means at the time. As Smith J. noted in O’Rourke v. Claire,  B.C.J. No. 630 (S.C.) at para. 42 “it does not lie in the mouth of the tortfeasor to say that a plaintiff in such circumstances has failed to mitigate by failing to arrange and pay for his own rehabilitative treatment.”
 Accordingly, I find that the defence has not discharged its burden of establishing that Mr. Trites failed to mitigate his losses in this case.
You may be wondering if ICBC is allowed to, on the one hand deny a Plaintiff rehabilitation benefits, and on the other have the Defendant’s lawyer argue at trial that the Plaintiff should have pursued these benefits and therefor reduce the Plaintiff’s award. The answer is yes and you can click here to read a previous article discussing this area of law, and here for the latest from the BC Court of Appeal on this topic.
Today’s case is also worth reviewing for the Court’s discussion of non-pecuniary damages and diminished earning capacity.
The Court accepted that the Plaintiff suffered moderate soft tissue injuries to his neck and back and these had a ‘guarded’ prognosis for full recovery. $75,000 was awarded for his non-pecuniary damages and the Court’s reasons addressing this can be found at paragraphs 188-198.
The Plaintiff was also awarded $250,000 for diminished earning capacity. He was an apprentice plumber and, despite his injuries, was able to continue to work in this trade in the years that followed the collision. However he struggled in his profession and there was evidence he may have to retrain. The court’s lengthy discussion addressing his diminished earning capacity can be found at paragraphs 213-239.