Skip To Navigation Skip To Content

Failure to mitigate personal injury losses is costly

Failure to mitigateIn a recent court decision, Cyr v. Kopp, 2016 BCSC 679, the compensation award for the victim of a distracted driver was stripped by over $60,000 because of his “failure to mitigate,” or follow through with medical recommendations.

The heavy-duty mechanic was sitting at a red light when a 10-ton flat-bed truck rear-ended his vehicle.

The senseless crash left him with a permanent injury that has, and will continue to, impact his income.

The mechanic’s doctor prescribed physiotherapy. In the more than four-year period from the crash to the trial, he had seen a physiotherapist only twice. Instead, he opted for a self-prescribed exercise program.

A failure to follow through with medical care recommendations does not automatically result in a reduction of your compensation recovery.

Justice G.C. Weatherill reviewed the legal test, noting that there is a legal onus on the defending insurance company to prove two things to succeed with this “failure to mitigate” defence.

One thing that must be proven by the defence is that a reasonable person in the injured victim’s shoes, having all the information at hand that the plaintiff had, ought reasonably to have undergone the recommended treatment.

The other thing that must be proven is that had the injured victim followed through with the recommended treatment, the treatment would have had a positive impact in the injured victim’s recovery, thereby reducing his losses.

Not surprisingly, the defending insurance company was able to prove both.

The judge was satisfied that the mechanic ought to have followed the medical recommendation of physiotherapy.

It was unreasonable for him not to have done so, noted the judge, ruling that “if he had done so, it is more probable than not that there would have been some significant recovery from his MVA-related injuries within 12 months of the MVA.” The judge assessed the mechanic’s full losses arising from the crash, but then reduced his compensation for aspects of those losses by 20 per cent, which resulted in the over $60,000 reduction.

Avoiding this “failure to mitigate” defence is a “fringe benefit” to simply acting reasonably to recover from your injuries as quickly and fully as possible.

I say fringe benefit because the primary benefit of doing so, obviously, is keeping your injuries and losses to a minimum.

I am like a broken record in providing legal advice along these lines.

Here is a direct quote from a standard e-mail I send to those who consult with me after a crash:

“It is critical that you assertively and diligently obtain your doctor’s care recommendations, follow them to the fullest, and return to your doctor as directed to ensure your care continues on the right track.

“I also recommend pushing your therapists (physio/massage/chiro/etc.) for any recommendations they might have for stretching/strengthening or other steps you can take in between treatment sessions to accelerate your recovery.

“If you are given exercises to do, ensure you inquire about (and follow through with) the recommended duration and frequency.”

By following my “legal advice” (which is more like medical advice), you will have the obvious benefit of enjoying as full and speedy a recovery as possible.

Yes, that will reduce your losses and, correspondingly, the value of your claim. But that’s a good thing!

The very best claim is no claim at all, but distracted drivers aren’t going anywhere fast. The next best claim is a very, very small one.

Read about what the courts expect from you during your recovery:
Find out what you can do to get better, and do it


Contact Hergott Law | Free initial consultations