More on ICBC Claims and the "Failure to Mitigate" Defence
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.