In Cyr v. Kopp, the Plaintiff was injured in a rear end motor vehicle accident. Liability was admitted by ICBC’S lawyer on behalf of the Defendant. The Plaintiff advanced an ICBC claim for numerous heads of damages, including non-pecuniary damages, income loss, and diminished earning capacity. A live issue for the Court to consider was whether or not the Plaintiff had fully and properly mitigated his damages.
The Plaintiff alleged to have suffered from Grade 2 soft tissue injuries to his neck, which had also affected his pre-existing shoulder injury.
At the time of trial, the Plaintiff’s prognosis was unknown, as the Court found that the Plaintiff had not properly mitigated his damages, by not properly following the advice of his medical practitioners with respect to treatment. As such, he had not fully recovered from his injuries.
By the time of trial, the Plaintiff had endured his injuries for over five years. The Court would award $75,000.00 for non-pecuniary damages, but would reduce this to $60,000.00 for lack of full and proper mitigation.
 The medical experts are in agreement, and I find, that the plaintiff likely suffered a grade 2 whiplash injury as a result of the MVA. That injury affected the plaintiff’s right cervicothoracic region, extending to the right shoulder. He also experienced the onset of migraine headaches.
 I accept the plaintiff’s evidence that these MVA-related injuries continue to persist. I also accept Dr. Bowlsby’s opinion that, while they should have healed long ago, the pain fibers in some people do not turn off over time and sometimes get worse. Dr. Bowlsby opined that, in his experience, approximately 10% of people who suffer whiplash injuries prove to be difficult to treat and those injuries can be a source of significant and sometimes permanent disability.
 I am unable to conclude that the plaintiff is one of those 10% because he refused to initiate the physiotherapy treatments that were repeatedly recommended by his medical practitioners.
 Here, the plaintiff’s pre-existing right shoulder injury was continuing to cause him pain and discomfort at the time of the MVA. The MVA caused him to suffer an upper body soft tissue injury which continues to persist. His prognosis for recovery continues to be unknown.