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Examination for discovery warnings

I didn’t cause the crash. Why does it feel like I am the one on trial?

Just because you am making an ICBC claim, that feeling is very much the reality.

A trial isn’t needed to prove the fault of the absent-minded driver who crashed into the back of your stopped vehicle.

For most ICBC claims, fault is a given.

What needs to be figured out is the value of your losses arising from the crash, and this can feel invasive.

Except in claims involving the most minimal of injuries it’s not as easy as tallying the bit of time you were away from work and adding up receipts.

For more significant injuries, with correspondingly significant losses, there is a legal obligation that puts injured victims on the defensive.

It’s called “mitigation.”

An injured victim has a legal obligation to take all reasonable measures to keep their losses to a minimum.

Why would mitigating your losses put you on the defensive?

At some point, perhaps three years after the crash, an ICBC defence lawyer will be sitting across from you at an examination for discovery.

An examination for discovery is a standard step in a personal injury lawsuit where an ICBC defence lawyer asks you questions. It is the most “on trial” you are likely ever to be because most personal injury claims resolve by settlement without requiring an actual trial.

It’s nothing to be afraid of.

You simply respond honestly to the questions posed.

But the ICBC defence lawyer will go over the steps taken and decisions made over that three year period, armed with the benefit of 20/20 hindsight.

There are the steps taken and decisions made in your struggle to get better:

Why did you wait so long to see your doctor? Why did you stop attending this or that therapy? Why did it take so long to return to your doctor for more treatment options? Why didn’t you attend that care more often?

And in your struggle to minimize your income losses:

Why didn’t you try to return to work earlier? Did you ask your employer to accommodate you? Did you get a doctor’s approval to reduce your work hours? Why didn’t you try, sooner, to find alternate work or to upgrade your education to get into another line of work?

And the impact on your life:

Why didn’t you try to return to this or that activity? Did your doctor tell you to hold back with this or that?

You have taken countless steps and made countless decisions in your struggle over the last three years to recover and to maintain financial stability. You have been doing your very best to get better and to lose as little income as possible.

Now, with the benefit of 20/20 hindsight and a clear, analytical mind unencumbered by financial stress and chronic pain, all of those steps and decisions are being questioned.

Sometimes those questions are asked with an unpleasant, even sarcastic, tone.

No wonder you feel like you’re the one on trial! No wonder you feel defensive!

What can you do to protect yourself against being second guessed by the ICBC defence lawyer?

Be mindful of this issue, right from the beginning.

Any time you face a decision, however small, be aware that it might be second-guessed down the road with the benefit of 20/20 hindsight.

How to prepare for your examination for discovery:

Involve your medical team (doctor, therapists, chiropractor) in your decisions. Don’t use them as decision “rubber-stampers”, though. Put their clear, analytical minds to work to decide your ongoing course of therapy and (if absolutely necessary) to put limits on your work and activity function.

Ensure you follow up regularly to ensure your ongoing course of therapy is optimum.

Involve other advisors as might be applicable. A business owner will face decisions about how best to “mitigate” business losses arising from their injuries. Those decisions might have huge impacts on business losses. Consult with your accountant and/or a business consultant.

Take the time to make journal notes when making significant decisions so that you can use them, perhaps years later, to refresh your memory about the factors you considered.

I have good news for you. Unfairly poking holes in decisions you make along the way is not going to get ICBC very far.

You are not held to a standard of perfection, just reasonableness.

In the words of Madam Justice W.J. Harris in Ellis v. Duong, 2017 BCSC 459, at paragraph 145:

“The plaintiff is not generally held to a high standard of conduct in mitigation. The law is satisfied if the plaintiff takes steps that a reasonable person would take in the circumstances to reduce the loss.”

And the court is unlikely to find that decisions made in “good faith” are unreasonable. This excerpt comes from paragraph 233 of the decision of Carver v. Or, 2017 BCSC 1496 (LINK: ):

[233] The court is slow to determine that good faith decisions are unreasonable. As set out in Paniccia Estate v. Toal, 2012 ABCA 397 at para. 86:

… the court only lightly reviews the decision of the person injured to try to mitigate his loss. Courts are extremely slow to criticize good-faith decisions by victims of torts about both whether to take steps in mitigation, or which steps, or how much expense or risk to incur in doing so. …

Don’t let those words make you complacent, though. A failure to mitigate losses is always alleged by ICBC and the time will come when you are asked those probing questions.

And many injured victims do end up facing the consequences of 5 percent, 10 percent, and sometimes higher percentages of reduction in their compensation when ICBC lawyers are able to prove a failure to mitigate losses.

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