Category: Mitigation

Court Hits Plaintiff With Harsh Reduction In Award For Failure To Mitigate

In Mullens v. Toor, the Plaintiff was injured in a motor vehicle collision, and consequently brought an ICBC claim for non-pecuniary damages, income loss, diminished earning capacity, and the cost of future care. The Plaintiff alleged to have suffered from physical and psychological injuries, and an inability to return to her pre-accident work status.

 

At trial, a major issue for the Court to consider was whether or not the Plaintiff had properly mitigated her damages, both in terms of her treatments, and her return to work.

 

In the context of an ICBC injury claim, mitigation is a legal obligation of a claimant to take active, reasonable steps in the recovery process to mitigate (lessen or reduce) their damages and losses. Not properly mitigating damages can sometimes result in a reduction in the judgment awarded by the Court. In order for ICBC’S lawyer to succeed in a failure to mitigate argument, it would need to be proven that the claimant acted unreasonably in not following doctor’s orders, and it would also need to proven to what extent, if any, that the claimant’s injuries would have been reduced had he or she properly mitigated their damages. A failure to follow the advice of treatment providers is a common allegation made by ICBC’S lawyer when advancing a failure to mitigate argument.

 

In the case at bar, the Court was of the opinion that the Plaintiff had failed to properly mitigate her damages by not making more sincere efforts to return to work. As well, the Court found that the Plaintiff did not properly mitigate her damages with respect to her psychological injuries, by not seeking psychiatric treatment, and by not taking anti-depressant medication recommended by her doctor.

 

In an unusually harsh reduction by the Court, the Plaintiff was hit with a 50% reduction in the damages awarded to her as a result of a failure to mitigate. The Court’s ruling is an important reminder to those injured in motor vehicle accidents that they should take active, reasonable steps in their recovery process, and that they should follow the advice of their medical practitioners, or else they could face a reduction in their Court award.

 

[108] With respect to the plaintiff’s failure to return to work, I find that she ought to have at least attempted to return to work in early 2013. She had by then reluctantly accepted her doctor’s advice to utilize anti-depressant medication and was feeling better. I accept the evidence of Dr. Robertson that she could probably have returned to work at the bank, possibly with some limitations, in early 2013. She had a very supportive employer who thought very highly of her, and who was aware of its duty to accommodate her and was prepared to do so. It is reasonable to conclude that had she made the attempt, there was a better than even chance that she would have been successful. Success could have been complete, in the sense that she could have resumed her former career path, or partial, in the sense that she might have been further delayed or continued effects of the accident injuries could have continued to limit her work capacity and her career.

 

[116] She has been unreasonably resistant and reluctant to accepting that her psychological condition requires medical treatment, including the use of anti-depressant medication, and psychiatric treatment. She was resistant to the early advice of Dr. Chu about anti-depressant medication in August 2012. She resisted the advice of Dr. Hanson until finally relenting in December 2012 only when he insisted. She testified that she was concerned that a diagnosis of depression and taking anti-depressant medications could have some negative consequences, such as for insurance. She did not give much detail about this. This could justify some degree of reluctance but no more. Embarrassment about accepting treatment for a mental injury is not a valid excuse.

 

[121] In sum, the plaintiff ought reasonably have begun use of anti-depressant medication earlier than she did initially. She could have resumed use of Pristiq or other suitable anti-depressant medication by July 2015 when she stopped breastfeeding, if not earlier. She ought to have been treated by a psychiatrist. Better engagement with medical and psychiatric treatment would have also increased the chances of a successful attempt to return to work which could have been attempted in early 2013 and again in 2015, and 2016.

ICBC’S Failure To Mitigate Argument Against Plaintiff Unsuccessful

In Mojahedi v. Friesen, the Plaintiff was injured in a motor vehicle accident, and commenced an ICBC claim for damages for pain and suffering, income loss, loss of housekeeping, diminished earning capacity, and future care. Liability was admitted by ICBC’S lawyer.

 

At trial, the Plaintiff called several expert witnesses, including his family doctor, a physiatrist, a vocational rehabilitation expert, an occupational therapist, and an economist.

 

ICBC’S lawyer argued that there should be a reduction in the Plaintiff’s award by 30% to reflect a failure on the part of the Plaintiff to mitigate his damages. In the context of ICBC injury claims, mitigation is the legal obligation of a claimant to take active, reasonable steps in the recovery process to mitigate (lessen or reduce) their damages and losses. If a Plaintiff fails to properly mitigate their losses, this can result in a reduction of the Plaintiff’s award. To succeed in a failure to mitigate argument, ICBC’S lawyer would have to show that the Plaintiff acted unreasonably by, for example, not following the advice of his or her doctor, and must also show to what extent, if any, the Plaintiff’s injuries would have been reduced had he or she acted reasonably. It is often a difficult test to meet.

 

The Court would go on to award the Plaintiff $80,000.00 for non-pecuniary damages, and ruled that there would be no reduction for a failure to mitigate on the part of the Plaintiff.

 

[143]     The defendant says that the plaintiff failed to mitigate by beginning physiotherapy and an active exercise program well after they were recommended by Dr. Jaffer (8 and 21 months, respectively). He also says that the plaintiff “has demonstrated a pattern of misleading Dr. Jaffer and not following his advice”, for example by going for chiropractic treatment when Dr. Jaffer recommended swimming, by not telling Dr. Jaffer that he was taking his brother’s Tylenol 3s, by “exchanging” his Celexa prescription for marihuana at a marihuana dispensary and by incorrectly telling Dr. Jaffer that he followed his advice to start physiotherapy in January 2012.

 

[144]     With respect to the delay in beginning physiotherapy and an active exercise program, it may have been advisable for the plaintiff to begin physiotherapy and an active exercise program as soon as it was recommended. However, the plaintiff is held to a standard of reasonableness, not perfection, and mere delay in seeking recommended treatment is not necessarily unreasonable: see for example Lourenco v. Pham,2013 BCSC 2090 (CanLII) at paras. 49-56. In any event, the defendant has not shown on a balance of probabilities that beginning physiotherapy or an active exercise program earlier would have reduced the plaintiff’s symptoms. The fact that earlier treatment was more likely to be efficacious is insufficient: see for example Smith v. Both, 2013 BCSC 1995 (CanLII) at paras. 110-111; Manson v. Kalar, 2011 BCSC 373 (CanLII) at para. 40.

Plaintiff Hit With 40% Reduction In Non-Pecuniary Damages For Failure To Properly Mitigate

In Liu v. Bipinchandra, the Plaintiff was injured in a motor vehicle accident, and advanced an ICBC claim for several types of damages, including non-pecuniary damages, loss of income, diminished earning capacity, and the cost of future care. Liability was admitted on behalf of the Defendant by ICBC’S lawyer.

 

The Plaintiff suffered a fractured clavicle in the accident, which required surgical repair. The Court also accepted that the Plaintiff suffered from various injuries, including neck pain, back pain, shoulder pain, headaches, and anxiety, however the Court had significant concerns with the Plaintiff’s credibility, as well as the reliability of her evidence.

 

A central issue for the Court to consider was whether or not the Plaintiff properly mitigated her damages. Mitigation is the legal obligation of a claimant in an ICBC injury claim to take active, reasonable steps in the recovery process to mitigate (lessen or reduce) their damages and losses. This can include seeking treatment for a claimant’s injuries, as well as taking steps to reduce income loss by returning to work, or seeking alternate employment. For the Defendant to succeed in a mitigation argument, an ICBC lawyer would have to show that the Plaintiff acted unreasonably in not following the recommended courses of treatment, and must also prove the extent, if any, to which the Plaintiff’s damages would have been reduced had the Plaintiff acted reasonably.

 

The Court noted that the Plaintiff failed to make use of prescription medications, did not attend for many physiotherapy and chiropractic sessions, and did not attend for many psychological counseling sessions. In reality, the Court commented, the Plaintiff virtually ignored all the treatment recommendations made to her by the variety of doctors she had attended to, relying instead on herbal medicines, meditation, and prayer. Further, the Court noted that the Plaintiff failed for many years to seek out employment.

 

The Court was also of the belief that, if the Plaintiff had followed treatment recommendations, that these would have greatly assisted her in her recovery.

 

The Court would eventually award the Plaintiff $100,000.00 in non-pecuniary damages, however would reduce this amount by 40% to account for the Plaintiff’s failure to properly mitigate her damages.

 

Although reductions for lack of proper mitigation are not normally as extreme as in the present case, it serves as a useful illustration to claimants with ICBC claims of the importance of following the advice of your doctor and treatment providers, which is the best way to avoid a failure to mitigate argument brought on behalf of a Defendant by an ICBC lawyer.

 

[74]         In this case, I do not consider that I need address this issue. Ms. Liu’s failure to adhere to the treatment recommendations that were made to her were not, based on her own evidence, a product of any cultural influence. Based on her evidence, she did not follow the recommendations that were made to her because they were too expensive, or because they were ineffective or, in the case of pharmaceuticals, because they upset her stomach, or because she was too busy to attend at treatments, or for various other reasons. I would also observe that virtually all of her various treatment providers, and many of the experts that she relied on, were physicians of Chinese origin with various sub-specialties, who practiced “conventional” medicine in the Vancouver area. So too her immediate family consists or consisted of physicians and health professionals.

 

[96]         Ultimately, Ms. Liu did not follow most treatment recommendations that were provided to her. She did almost no physiotherapy. She did not join a gym. She took few medications that were prescribed for her in any sustained or focused way. She did not obtain any counselling of a meaningful nature. Her reasons for her behaviours are varied and inconsistent.

 

[97]         There is no suggestion that any of these recommendations posed a risk to her. I will momentarily come to the evidence which establishes that these various recommendations had a significant prospect of assisting her. In such circumstances, I do not consider that her failure to follow the various treatment recommendations that were made to her was reasonable.

 

[108]     It is unusual for a plaintiff to so thoroughly disregard the treatment recommendations that have been made to her. I am satisfied that most, if not all of Ms. Liu’s various conditions would have improved considerably had she acted otherwise. Accordingly, I am satisfied that an adjustment of 40% to the amounts she would otherwise receive is, in all of the circumstances, appropriate in light of her failure to mitigate her losses.

Mild Reduction In Non-Pecuniary Damages Award For Plaintiff Failing To Mitigate By Not Seeking Psychological Counselling

In Dhanji v. Holland, the Plaintiff was a pedestrian who was injured when she was struck by a motor vehicle in a marked crosswalk. She brought an ICBC claim for many types of damages, including pain and suffering, cost of future care, and diminished earning capacity. Liability was admitted by ICBC’S lawyer. The Plaintiff suffered from a variety of injuries, including bruising and contusions to her arm and hips, neck pain, chronic back pain, headaches, and depression. The Court found the Plaintiff to be a stoic individual. The Court also ruled that the Plaintiff would probably live with chronic mid-back indefinitely, and that her depression was largely, but not entirely, caused by the negligence of the Defendant. ICBC’S lawyer argued that the Plaintiff failed to mitigate her damages by not taking psychological counselling, by not taking anti-depressant medication, and by not maintaining her exercise and active rehabilitation program. The Court eventually awarded the Plaintiff $75,000.00 for non-pecuniary damages, but reduced it by 10% for failure to mitigate by not attending for psychological counselling.

 

[97] The plaintiff testified that she did not wish to take anti-depressant medications because she thought there was a stigma attached to their use and because she found exercise to be effective in improving her mood. While fear of stigma would not, on its own, provide a fully informed reasonable patient with a justification for declining anti-depressant medication, Ms. Dhanji had previously realized an improvement in her mood from exercise. Further, Drs. Devlin and O’Connor both gave evidence that exercise is a recognized and effective means of treating depression.

 

[98] The defendant has not shown the plaintiff acted unreasonably in declining to use the anti-depressant medication recommended three months before trial, in circumstances where she had embarked upon psychological counselling and had resumed exercising. Nor has the defendant shown that the use of anti-depressant medications since late March 2015 would have reduced the plaintiff’s damages.

 

[103] On the whole of this evidence, I am satisfied that the plaintiff’s failure to act on the recommendations of Drs. Sampson and O’Connor of early 2013 that she attend counselling was unreasonable, and that had she done so she would have benefitted by some reduction of her loss. Bearing in mind that Ms. Dhanji failed to mitigate by delaying a recommended treatment, rather than refusing to take counselling at all, I assess the appropriate reduction of the plaintiff’s non-pecuniary damages at 10%.

 

[104] … In the particular circumstances of this case, I am not persuaded that the plaintiff’s choice to give priority to her relationship was unreasonable. Ms. Dhanji was not required to meet a standard of perfection in her efforts to mitigate her damages. Since that relationship has ended, she has renewed her efforts to improve her conditioning. The defendant has not established that Ms. Dhanji failed to mitigate her damages by stopping her exercise and conditioning program during her relationship.

 

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

No Deduction For Mitigation For Inability Of Plaintiff To Fund Treatment

In Lourenco v. Pham, the Plaintiff was injured as a pedestrian when she was struck by a vehicle in a marked crosswalk. The Plaintiff brought an ICBC claim for damages for pain and suffering, loss of income, future wage loss, special damages, out of pocket expenses, and cost of future care. Liability was admitted for the accident by ICBC’S lawyer. Prior to the accident, the Plaintiff was a very active person, and had a physically demanding job as well. ICBC’S lawyer attempted to argue that the Plaintiff failed to mitigate her damages by not attending for physiotherapy treatment as much as she should have after the accident. The Court, however, rejected this line of argument, and ruled that there would be no partial reduction in overall damages for a failure to mitigate by the Plaintiff. The Court noted that it was reasonable for the Plaintiff to conclude that physiotherapy would have been too painful right after the accident for a period of time, and also ruled that her inability to fund treatment could not be evidence of a failure to mitigate on her part.

 

[50] Once the plaintiff establishes that the defendants are liable for her injuries, the burden of proof shifts to the defendants. In order to prove the plaintiff did not meet her duty to mitigate, the defendants must establish that she acted unreasonably and that reasonable conduct would have reduced or eliminated the loss. Whether the plaintiff acted reasonably is a factual question.

 

[52] The defendants argue that Ms. Lourenco was not compliant with Dr. Ezekiel’s advice during the first post-MVA appointment to attend physiotherapy. They claim that this demonstrates a failure to mitigate her losses and suggests that her injuries were not as serious as she claims. They assert that the evidence shows that physiotherapy did assist in an improvement of her symptoms and provided her with a regime that affords her some relief. Ms. Lourenco was unreasonable in not pursuing physiotherapy sooner than March 2010 and that her pain and suffering would have been reduced if she had. The defendants’ claim is similar to other failure to mitigate arguments that have been considered and rejected in previous cases.

[53] In Smith v. Both, 2013 BCSC 1995 (CanLII), 2013 BCSC 1995 the court did not accept the defendant’s argument that the plaintiff had failed to mitigate her damages despite the fact that there was an 18 month delay between her doctor’s recommendation that she undertake a physiotherapy and rehabilitation program and her commencing such a program.

[54] In Manson v. Kalar, 2011 BCSC 373 (CanLII), 2011 BCSC 373 the plaintiff’s doctor recommended that he attend physiotherapy and strengthen his core muscles by undergoing an exercise program under the supervision of a personal trainer. The plaintiff did not undertake any kind of exercise program and only attended minimal physiotherapy appointments. Yet the court similarly rejected the defendant’s claim of failure to mitigate damages.

[55] While I accept that physiotherapy had positive effects on Ms. Lourenco’s injury symptoms, I cannot find that she acted unreasonably by not pursuing treatment until four months after the MVA. Again, Ms. Lourenco was a pedestrian hit by a vehicle. I do not doubt that she suffered a great deal of pain and that her belief that physiotherapy would be too painful to pursue right after the MVA was reasonable. I also accept that she did not have the money to pay for physiotherapy. It is not reasonable, as the defendants suggest, that she borrow money from her parents and friends to enable her to go to physiotherapy.

[56] The defendants have not met the onus of proof required to demonstrate that the plaintiff could have avoided all or a portion of the loss.

 

ICBC Unable To Prove Plaintiff Failed To Mitigate Damages

In Ladret v. Stephens, the Plaintiff was injured in a t-bone collision, and subsequently brought an ICBC claim for damages for pain and suffering, loss of income, loss of future income, loss of housekeeping capacity, out of pocket expenses, and the cost of future care. Liability was not in issue. ICBC’S lawyer made the argument that there should be a reduction in any amounts awarded to the Plaintiff, due to her failure to mitigate (lessen, reduce) her losses, specifically her failure to attend an MRI, her failure to avail herself of steroid-like injections for her pain, and her failure to attend to a doctor’s office for a lengthy period of time. Counsel for the Plaintiff argued that ICBC’S lawyer had failed to discharge the two part burden test, by not showing that the Plaintiff had acted unreasonably, and by not showing that she would have reduced her losses had she acted reasonably. The Court disagreed with ICBC’S lawyer, ruling that there would be no reduction in damages for a failure to mitigate on the part of the Plaintiff.

 

[120] The law on mitigation is described in the Supreme Court of Canada’s decision in Janiak v. Ippolito, [1985] 1 S.C.R. 146, where the court said at para. 33, quoting from the Australian case of Buczynski v. McDonald (1971), 1 S.A.S.R. 569:

The plaintiff is “bound to act not only in his own interests, but in the interests of the party who would have to pay damages, and keep down the damages, so far as it is reasonable and proper, by acting reasonably in the matter” …. “If any part of his (the plaintiff‘s) damage was sustained by reason of his own negligent or unreasonable behaviour, the plaintiff will not be recouped as to that part.” [Citations omitted.]

[126] Some of the treatments suggested by the defendant such as an MRI and consideration to have a steroid injection are remedies or treatments that the plaintiff should reasonably consider, and should consider now. But where I find the failure to mitigate argument falls down is that the defendants have not demonstrated that, had the plaintiff undertaken these treatments, her condition would likely have improved. The burden on this issue is on the defendants, and they have also failed to establish that the failure of the plaintiff to obtain medical treatment or pursue physiotherapy in the period June 25, 2010 to April 2011 would likely have improved her condition.

[127] Accordingly, as the defendants have not discharged the burden on them, I decline to make any reduction in damages based on a failure to mitigate.

No Deduction For Mitigation For Not Taking Medication And Not Doing Home Exercising

In Jawanda v. Samra, the Plaintiff was injured in a car accident as a passenger in a t-bone collision. The Plaintiff brought an ICBC claim for damages for pain and suffering, diminished earning capacity, and future care. The Plaintiff claimed she still suffered from the motor vehicle accident related injuries by the time of trial, whereas ICBC’S lawyer submitted that the Plaintiff’s symptoms resolved within six months to a year. Despite the Court noting some inconsistencies in the Plaintiff’s evidence, the Court ruled that such inconsistencies did not undermine the overall credibility of the Plaintiff, and awarded $75,000.00 for non-pecuniary damages. ICBC”S lawyer argued that there should be a deduction for mitigation based on the fact that the Plaintiff stopped taking medication prescribed by her doctor, and did not engage in a home exercise regime suggested by her doctor. The Court rejected these submissions, and made no deduction for mitigation.

 

[171]     Defendants’ counsel says one example of Ms. Jawanda’s failure to mitigate is her stopping the use of Tramacet because she felt it was causing drowsiness and fatigue and upsetting her stomach. Irrespective of whether she advised Dr. Parhar that that was the reason she stopped taking this prescription, I am not satisfied this in any way meets the heavy burden on the defendants to show that Ms. Jawanda has failed to mitigate her losses.

 

[172]     The defendants also submit that Ms. Jawanda has failed to fully engage in an active exercise program. Ms. Jawanda testified that Dr. Parhar and Dr. Sidhu advised her to walk and do some stretching, a relatively minimal exercise rehabilitation regime. She testified she walks regularly and does the stretches “probably once or twice a week.” When asked why she did not do these exercises every day, Ms. Jawanda said she is often “too tired” but she has been doing them for four or five years. Even though it is a very modest exercise program and Ms. Jawanda could have stepped up her rehabilitation regime, I am satisfied she has followed Dr. Parhar’s recommendations to a substantial degree. Moreover, the plaintiff has continued to work with her pain on a regular basis. I accept that Ms. Jawanda has been as “active” as she can be. This was acknowledged by the medical professionals as being an important component in any rehabilitation program. In these circumstances I am not satisfied the defendants have established that Ms. Jawanda has failed to mitigate her loss.

 

Impecuniosity Does Not Translate To A Failure To Mitigate

In Brown v. Raffan, the Plaintiff was injured a car accident, and consequently pursued an ICBC claim for several heads of damages, including pain and suffering, income loss, diminished earning capacity, loss of housekeeping capacity, and cost of future care. There was no dispute as to liability. ICBC’S lawyer argued that there should be a deduction for failure to mitigate on the part of the Plaintiff for not seeking treatment, and for not doing home exercises. The Plaintiff argued that she could not afford treatment. The Court held that the impecuniosity of the Plaintiff did not translate to a failure to mitigate.

 

[117]     The defendant must do more than show that the plaintiff failed to engage in treatment that could or might have been beneficial: Gregory v. ICBC2011 BCCA 144 (CanLII), 2011 BCCA 144, at para. 56. The defendant has produced no medical evidence to indicate that the extent to which the plaintiff’s damages would have been reduced had she acted reasonably: see Wahl v. Sidhu2012 BCCA 111 (CanLII), 2012 BCCA 111, at para. 32, citing Chiu v. Chiu2002 BCCA 618 (CanLII), 2002 BCCA 618.

 

[118]     Moreover, the plaintiff testified that she did not attend physiotherapy because she could not afford the $20 per session user fee. I accept this evidence. In my view, it cannot be said that the plaintiff has acted unreasonably or failed to mitigate by failing to pursue treatment which she has no means of funding, and which ICBC has refused to fund.

 

[121]      A number of other cases have considered the question of whether limited financial resources can be considered when assessing whether a plaintiff has acted unreasonably in failing to undertake the recommended programs or therapies.

 

[125]     In light of these decisions I do not accept the principle set out in Smyth. Instead, the question for this Court is whether the defendant has met its burden of demonstrating that the plaintiff acted unreasonably in eschewing the recommended treatment. This is a factual decision to be determined in the circumstances of each case. I am not satisfied that the defendant has established that the plaintiff acted unreasonably by failing to undergo physiotherapy treatment that she could not afford to pay for.

 

[126]     In the result I reject the defence contention that damages should be reduced for failure to mitigate by the