A principal issue in this car accident injury appeal was whether the trial judge erred in finding that the claimant had failed to mitigate.  The symptoms of chronic pain having been conclusively established by the finding of causation, ICBC failed to prove that she had failed to mitigate her injuries (Park v. Targonski,2017 BCCA 134).
The court acknowledged that Chronic pain is a complex disorder that negatively impacts sleep, energy, mood, and motivation. The trial judge erred in finding that the claimant: (1)  failed to follow the advice of her doctors; (2) any failure to do so was unreasonable; and (3) had she followed that advice she would have mitigated her damages.
As Madam Justice D. Smith stated in her dissenting reasons, adopted by the majority, “In my view, the judge effectively reversed the burden of proof, placing it on [the claimant] to establish that she had mitigated the impact of her injuries. Based on the totality of the evidence, I am unable to conclude that the respondents met that burden.”

 The trial judge made the error of merging the issues of causation and mitigation. He accepted that the claimant’s chronic pain disorder was caused by the car accident but in essence concluded that she failed to mitigate her losses because of the symptoms of the chronic pain disorder. The 20% reduction in non-pecuniary damages to compensate for pain and suffering was therefore set aside.

As stated at paragraph 89 of this decision:

Like causation, a finding that a plaintiff has failed to mitigate his or her losses is a finding of fact. However, the finding may also raise a question of law if the burden of proof is not correctly placed on the defendants. The oft-cited test for the failure to mitigate was summarized by Mr. Justice Low in Chiu at para. 32:

[32]      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.

Posted by Personal Injury Lawyer Mr. Renn A. Holness B.A LL.B

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