Original Published: May 14, 2014
When you are injured in a car accident and claim damages from ICBC, you are under an obligation to “mitigate” your damages, that is, to take reasonable steps to minimize your loss.
In the recent case of Maltese v. Pratap, 2014 BCSC 18, several medical professionals recommended that the plaintiff undertake a program of physical rehabilitation and fitness with a personal trainer, but the plaintiff did not do so. The judge found that there would have been a significant improvement in the plaintiff’s condition had he undergone the recommended treatment. The plaintiff’s pain and suffering award was reduced by 30% as a result. The Court stated at paragraph 52, “When doctors recommend treatment and the advice is not followed, the defendant [ICBC] must prove: first, that the plaintiff acted unreasonably in not taking the treatment, and second, the extent to which the plaintiff’s damages would have been reduced.” The Court went on at paragraph 55: “The facts of this case represent a textbook example of a failure to mitigate. There is a consensus among the professionals who assessed and treated the plaintiff that [he] needed to undertake a program of physical rehabilitation and fitness with a kinesiologist or personal trainer. Their recommendations are remarkably similar. [The plaintiff] has chosen to ignore them.”
Reductions for failure to mitigate may be more or less than 30%. In the case of Latuszek v. Bel-Air Taxi (1992) Limited, 2009 BCSC 798, the plaintiff’s award was reduced by 40% when the plaintiff failed to comply with an exercise regime. At paragraph 85, the Court stated: “There is a duty at law to take reasonable steps to minimize your loss, particularly where, as here, conservative treatments have been recommended. … [The doctor] recommended exercises in the pool and gym and brisk walking. [The plaintiff] says he swam once in a while, but he did not go to the gym or do brisk walking. … [The plaintiff] does very little regular exercise of any kind, except once or twice a week. He did not try yoga, massage therapy, relaxation therapy or the medications as recommended by his psychiatrist. … [H]e understands that … exercise, may improve, if not cure, his symptoms. The plaintiff has not prioritized his recovery.”
Juries may also apply a reduction to a plaintiff’s pain and suffering award, as occurred in Ogilvie (Litigation guardian of) v. Mortimer, 2008 BCSC 634. The mitigation argument is not limited to cases heard by judges.
It is possible that the Court may find it reasonable in certain circumstances for an accident victim to decline a treatment recommended by a doctor, meaning that even though a plaintiff did not follow his or her doctor’s advice, there is no reduction to the general damages for failure to mitigate. For example, in the case of Ayoubee v. Campbell, 2009 BCSC 317, the plaintiff declined recommended surgical treatment on the basis that the surgery may not have resolved his complaints had he elected to proceed. This outcome is the exception to the rule, however, and generally speaking, if you are claiming injuries from a car accident then the best course of action when your doctor advises you to pursue a given treatment is to follow your doctor’s advice.
The overriding question for the Court is what is reasonable in the circumstances, as set out at paragraph 37 of Middleton v. Morcke and Lee, 2007 BCSC 804: “[t]he plaintiff is not held to a high standard of conduct in mitigation; the law is satisfied if the plaintiff takes steps that a reasonable person would take in the circumstances to reduce the loss.” In assessing the reasonableness of refusing to take treatment, the Court should take into consideration the risk of the treatment, the gravity of the consequence of refusing it, and the potential benefits to be derived from it (Janiak v. Ippolito,  1 S.C.R. 146).
*The above comments are to provide information only. In order to provide legal advice to you, we require the specific facts of your case. Please contact us at 604-939-8321 for an appointment.*