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 plaintiff.

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