Injured claimants have a legal duty to mitigate their injuries and losses from motor vehicle accidents.
What this means is that injured claimants have an obligation and responsibility to take reasonable steps to minimize their losses such as by following medical advice. If it is proven that an injured claimant failed to mitigate their injuries and losses, the award of damages will be reduced by a percentage determined by the trial judge.
In order for ICBC to succeed with the defence of duty to mitigate, ICBC must prove:
- that the injured claimant acted unreasonably in not following the recommended treatment AND
- the extent to which the injured claimant’s injuries or damages would have been reduced had he or she acted reasonably in not following the recommended treatment
To determine whether the injured claimant acted “reasonably” or “unreasonably”, the trial judge will apply a subjective/objective test:
- whether a reasonable person, having all of the information at hand that the injured claimant had, ought reasonably to have undergone the recommended treatment
A relevant consideration is the injured claimant’s personality and condition before and after the motor vehicle accident. The law does not require perfection in relation to treatment. In addition, ICBC must take the injured claimant as found meaning that his or her personality and condition from before and after the motor vehicle accident will be taken into consideration.
In Latreille v. Downey 2020 BCSC 976, the injured claimant who was 55 years-old at trial was injured in 2 motor vehicle accidents in 2014 and 2018. The medical evidence indicated that he suffered from injuries to the neck and back in the 1st motor vehicle accident and an exacerbation of these injuries in the 2nd motor vehicle accident. In addition, he was found to have suffered a mental injury. The injuries collectively were considered chronic and unlikely to resolve.
At trial, ICBC placed large emphasis on the injured claimant’s pre-existing chronic obesity and deconditioning. ICBC argued that the injured claimant failed to mitigate by failing to make reasonable efforts to reduce his weight which was recommended by his family doctor, his expert and ICBC’s expert who were of the opinion that his obesity had a role in exacerbating and prolonging his injuries.
The injured claimant testified that his obesity had been a long-standing issue from well before the 1st motor vehicle accident. He also testified that he was aware of his weight issues and these recommendations to lose weight, but at the same time he stated that he did not consider himself obese. He argued that he made reasonable efforts to lose weight and had done his best despite his pain, fatigue and low motivation. He further argued that his efforts to lose weight were sincere and reasonable and that he had succeeded in losing weight both before and after the 1st motor vehicle accident with no improvement in his symptoms.
On the evidence, the trial judge found that the injured claimant acted unreasonably in failing to lose weight as recommended. The trial judge, however, also concluded that ICBC failed to provide evidence that established the extent, if any, to which his damages would have been reduced had he acted reasonably in this regard. ICBC did not establish a failure to mitigate and the defence was rejected in that no reduction to the damages was made on this basis.
For more discussion on the ICBC duty to mitigate, please see our previous blog post on this issue.