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.

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