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.

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