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.


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