30% Deduction In Damages Award For Plaintiff Failing To Mitigate

In Maltese v. Pratap, the Plaintiff was injured in a t-bone motor vehicle collision, and consequently pursued an ICBC claim for injuries sustained therein. Liability was admitted by the Defendant. The Plaintiff‘s injuries continued at the time of trial, and were expected to continue into the future. The Plaintiff advanced claims for pain and suffering, loss of income, out of pocket expenses, loss of housekeeping capacity, diminished earning capacity, and costs of future care. The Plaintiff was awarded an overall substantial amount, however the amount was reduced by the Court by 30% for a failure to mitigate on the part of the Plaintiff. The Court ruled that it was unreasonable for the Plaintiff not to have followed the advice of his medical practitioners, and that, he had done so, his damages and losses would have been reduced. The Court also ruled that the Plaintiff would not be entitled to any costs of future care as well, as the Court did not believe that the Plaintiff would even seek the appropriate, recommended treatment.


[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 Mr. Maltese needed to undertake a program of physical rehabilitation and fitness with a kinesiologist or personal trainer. Their recommendations are remarkably similar. Mr. Maltese has chosen to ignore them.


[59] I am satisfied that the first stage of the test in Gregory has been met: I have no difficulty concluding that Mr. Maltese, having all the information at hand that he possessed at the time, ought reasonably to have undergone the recommended treatment of active rehabilitation through a kinesiologist or personal trainer.

[60] Among other reasons, Mr. Maltese submitted that because he felt worse after attending physiotherapy, he made a decision to not pursue an active rehabilitation program. I cannot accede to this argument. The medical evidence taken as a whole also establishes that, on a balance of probabilities, there would have been a significant improvement in the plaintiff’s condition or a reduction in his damages.

[61] On such a clear case, a reduction of 30% in the awards for non-pecuniary damages, wage loss after his return to work and los

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