In this failure to mitigate personal injury case(Maltese v. Pratap,2014 BCSC 18) the car accident occurred on Hastings Street in Burnaby after the claimant was driving home from a Vancouver Canucks hockey game. Another vehicle failed to stop and struck the passenger side of the claimant’s vehicle in a T-bone fashion. The Claimant suffered neck and lower back pain and he testified that his shoulder injury, headaches, leg pain and sleep troubles had largely resolved by the time of trial.
However the Judge felt that, “The facts of this case represent a textbook example of a failure to mitigate. There is a consensus among the professionals who assessed and treated the plaintiff that [he] needed to undertake a program of physical rehabilitation and fitness with a kinesiologist or personal trainer. Their recommendations are remarkably similar. [The injury claimant] has chosen to ignore them.”
The judge was quick to point out that an injury claimant is under a duty to mitigate, that is, to take reasonable steps to minimize his or her loss despite who is at fault for the accident. ICBC however bears the onus of proving the claimant could have avoided all or a portion of his loss, was was proven in this case.
It is important to know that when doctors recommend treatment and the advice is not followed, ICBC must prove: first, that the injury claimant acted unreasonably in not taking the treatment, and second, the extent to which the claimant’s damages would have been reduced. In this case the judge reduced the award due to failure to mitigate by 30% on: pain and suffering award of $40,000.00, past wage loss, loss of future earning capacity and loss of housekeeping capacity.
Posted by Personal Injury Lawyer Mr. Renn A. Holness
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