If you suffer injuries and your struggle with obesity affects your recovery from those injuries, should ICBC be able to blame you for your failure? What efforts will be sufficient to show that you’re trying to lose weight and recover?
The 2012 case of Delgiglio v. British Columbia (Public Safety and Solicitor General), 2012 BCSC 480 (http://www.courts.gov.bc.ca/jdb-txt/SC/12/04/2012BCSC0480.htm) featured a plaintiff who sustained a back injury and also suffered from long-term obesity. Medical evidence indicated that weight loss would have improved his back symptoms. The ICBC lawyer argued that the plaintiff didn’t do enough to “mitigate his losses” (plaintiffs are obligated to minimize their losses/suffering) and that ICBC shouldn’t have to pay for ongoing symptoms caused by his failure to lose weight. Despite finding that weight aggravated the plaintiff’s pain symptoms, Madam Justice Gropper rejected ICBC’s argument, explaining that the plaintiff’s efforts to lose weight had been contextually reasonable and sincere:
[87] Once the plaintiff establishes that the defendant is liable for his injuries, the burden shifts to the defendant. In order to prove that the plaintiff did not meet his duty to mitigate, the defence must prove that he acted unreasonably and that reasonable conduct would have reduced or eliminated the loss. Whether the plaintiff acted reasonably is a factual question: Gilbert v. Bottle, 2011 BCSC 1389 at para. 202. Gilbert continues at para. 203:
A relevant circumstance in cases such as this is the plaintiff’s personality and condition before and after the accident. The law does not require a plaintiff to do that which cannot be controlled, nor does it require perfection in the pursuit of rehabilitation. In addition, the defendant must take the victim as found, which may affect what is to be reasonably expected. For example, a person who has struggled with life-long obesity may not be expected to lose substantial weight to discharge the duty to mitigate, even though weight loss would assist recovery. What the law requires is that the plaintiff makes contextually reasonable and sincere efforts to limit his or her damages and loss [citations omitted].
[emphasis added]
[88] The evidence is clear that Mr. Del Giglio has struggled with lifelong obesity. He has attempted to lose weight in accordance with his doctor’s advice and has been somewhat successful. The plaintiff asserts that with assistance, including physiotherapy, kinesiology, the healthy heart program, a dietician and a gym membership he will likely lose weight and build his core strength.
[89] I find that Mr. Del Giglio has made “contextually reasonable and sincere efforts” to lose weight, but would benefit considerably from professional assistance. I disagree with the defendants that his damages should be reduced to reflect his reflected failure to mitigate. The defendants have not proven a failure to mitigate.
Authored by Jill Bishop
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