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ICBC’s Failure to Mitigate Argument Fails

If there are barriers to getting the recommended treatment for my injuries, will I be penalized? What if there is no evidence that the treatment would have improved my condition?

In a decision released this week (Downey v. O’Connor 2017 BCSC 1459), the plaintiff was injured in a rear-end collision. This collision occurred just two months after a roll-over on black ice. Despite the seeming significance of the roll-over, Mr. Justice Jenkins accepted the evidence of the witnesses and experts of the new injuries and changes in the plaintiff after the rear-end collision which was the subject of the litigation. He awarded $110,000.00 in non-pecuniary damages for her significant injuries and limitations, including thoracic outlet syndrome.

The ICBC lawyer argued that she could have mitigated her losses if she underwent an active rehabilitation program as recommended by her rehabilitation therapist. She explained her failure to follow through with the recommendations because it caused her pain, and she could not perform pool programs because of skin conditions that required her to only bathe in salt water pools (which are uncommon).  She explained that she could not afford a gym membership.

In finding that ICBC failed to prove the failure to mitigate, Mr. Justice Jenkins summarized as follows:

[105]     The defence seeks a deduction of 30% for the plaintiff’s failure to mitigate.

[106]     In reply on the issue of mitigation, I have been referred by the plaintiff to the case of Chiu v. Chiu, 2002 BCCA 618 where the court stated:

[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. These principles are found in Janiak v. Ippolito, [1985] 1 S.C.R. (S.C.C.).

[107]     I was also referred to the decision of Parrett J. in Myatt v. Holicza, 2000 BCSC 1149, in which the learned judge stated:

[96]      …It is not sufficient to prove that a particular plaintiff was a difficult patient, or that he or she refused certain treatment. They must go further and prove, on a balance of probabilities, that the plaintiff should reasonably have pursued that treatment and that it would have reduced the loss.

[Emphasis added.]

[108]     In the circumstances, considering the many treatments received by Ms. Downey, her attempts at physical activity and the resulting pain, even if her failure to pursue a more aggressive strengthening program as suggested by Dr. Waspe was unreasonable, which I find it was not, the defence has not proven on a balance of probabilities that the treatment would have reduced the plaintiff’s damages. It was not sufficient for the defendant to show that an exercise program could have been of benefit, but that on a balance of probabilities the program would have reduced her damages.