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Failure to mitigate

If you’re the victim of a collision that is not your fault, what obligation is there for you to recover and get back to “normal”? What if you don’t do all that you reasonably can to recover? Will you be penalized by the judge?

In this week’s case of Cyr v. Kopp (2016 BCSC 679), the plaintiff sustained whiplash injuries when he was rear-ended in 2011. He was 39 years old at the time of trial, and was a heavy duty mechanic prior to the collision. On four separate occasions in the six months after the crash, he saw doctors and was recommended pain medication and to participate in a rehabilitation program with a physiotherapist. He chose not to follow this medical advice.

In fact, in the four years that passed between the time of the crash and the time of trial, he saw a physiotherapist only twice. The law obligates the defendant (here, ICBC) to prove that the plaintiff could have reduced his or her loss by pursuing their recovery. A failure to do your best to recover is called “failure to mitigate your losses” in legal terms. In this case, the medical evidence indicated that participation in a rehabilitation program would have enabled the plaintiff to get back to work sooner and resume his previous lifestyle.  Justice Weatherill discussed this plaintiff’s failure to mitigate, and ultimately reduced his award by 20% to account for this. He provided the following explanation:

[133]     The test for failure to mitigate was set out in Chiu v. Chiu, 2002 BCCA 618 at para. 57

[57]      The onus is on the defendant to prove that the plaintiff could have avoided all or a portion of his loss.  In a personal injury case in which the plaintiff has not pursued a course of medical treatment recommended to him by doctors, the defendant must prove two things: (1) that the plaintiff acted unreasonably in eschewing the recommended treatment, and (2) the extent, if any, to which the plaintiff’s damages would have been reduced had he acted reasonably.

[134]     The mitigation test is a subjective/objective test, that is, “whether the reasonable patient, having all the information at hand that the plaintiff possessed, ought reasonably to have undergone the recommended treatment”: Gregory v. Insurance Corporation of British Columbia, 2011 BCCA 144 at para. 56.

[135]     The plaintiff attended a walk-in clinic on November 21, 2011, January 5 and February 24, 2012, and saw his family doctor on April 18 and June 22, 2012.  On each occasion, he was given a prescription for pain medication and advised to undergo a program of rehabilitation under the direction of a physiotherapist.  The plaintiff chose not to follow this advice.

[136]     In more than four years since the MVA, the plaintiff saw a physiotherapist only twice, once on June 25, 2012 and once on November 17, 2015.  Instead, he opted for a self-prescribed exercise program which he testified consisted of stretching at home and attendances at the gym two or three times per week despite it not providing relief of his pain symptoms.  I find it is unlikely that the plaintiff performed the self-prescribed exercise program or any other exercise program as often as he said he did prior to January 2014, when Ms. Gibson moved in with him and began to motivate him to exercise.

[137]     I accept the prognosis opinions of Drs. Bowlsby and Boyle that, had the plaintiff initiated and maintained physiotherapy treatments as he was advised to do, it is probable that he would have been able to return to work as a heavy duty mechanic at the Port within twelve months of the MVA.  Indeed, Ms. Andrews shared that sentiment and made recommendations in that regard.  However, the plaintiff continues to ignore that advice.  Rather, he has decided to await the outcome of what he described as “nuclear MRI testing” currently scheduled for August 2016.

[138]     While I accept that the plaintiff is not a malingerer and that his injuries are persisting, the defendants have satisfied me that the plaintiff ought to have followed the advice of his medical practitioners and undergone a program of rehabilitation under the direction of a physiotherapist.  They have also satisfied me that it was unreasonable for the plaintiff not to have done so and 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 twelve months of the MVA.

[139]     The defendants are entitled to an adjustment in the plaintiff’s damages to account for my finding of fact that he would have recovered from his MVA-related injuries sooner if he had implemented and maintained the recommended physiotherapy programs.  I am satisfied that a deduction of 20% is appropriate.

[165]     Having considered the foregoing, as well as the contingencies (both positive and negative) of the plaintiff being able to return to work at the Port after a proper rehabilitation program, and having taken into account a 20% reduction that should be applied for the plaintiff’s failure to mitigate, I find that a global award for the plaintiff’s loss of future earning capacity of $120,000 ($150,000 x 80%) is appropriate.

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