As outlined in a previous blog post, injured claimants have a legal duty to mitigate their injuries and losses from motor vehicle accidents.  In other words, injured claimants have a legal responsibility to take reasonable steps to minimize their injuries and losses.  In ICBC cases, an injured claimant’s duty to mitigate often relates to decisions to follow medical advice and recommendations to pursue therapy or surgery.  If ICBC proves that an injured claimant failed to mitigate their injuries and losses by not following medical advice and recommendations, then the trial judge will reduce the overall damages award by a fixed percentage.

In order for ICBC to succeed with the defence of duty to mitigate, ICBC must prove:

  1. that the injured claimant acted unreasonably in not following the recommended treatment AND
  2. 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

As it relates specifically to surgery, there are complications and risks to all surgeries.  No surgery is 100% guaranteed.  Some patients are comfortable with the risks and some are not.  What happens if the medical experts are of the opinion that surgery will fully resolve pain, but the injured claimant declines surgery because of the risks?  Can ICBC argue that the injured claimant failed to mitigate and, therefore, his/her compensation should be reduced because of this?  The answer is – it depends.

In Domijan v. Jeon 2018 BCSC 1988, the male injured claimant suffered a disc herniation in his lower back in a motor vehicle accident.  This injury cased him significant pain and impacted his ability to continue working as a pipefitter.

A neurosurgeon testified that he recommended a surgical fusion or a disc replacement which would significantly reduce his pain and allow him to return to his regular activities and occupation.  There were low, but material, surgical risks such as paraplegia and sexual dysfunction.  Without surgery, the neurosurgeon opined that the back pain and functional limitations were permanent and lifelong.

The injured claimant decided not to pursue surgery on the recommendation of his family doctor.  He testified that this was because of the risks.

In deciding whether the injured claimant failed to mitigate his damages by deciding not to pursue surgery, the trial judge ruled that this decision was not unreasonable:

“…The surgery has material risks of nerve root injury/paraplegia, sexual dysfunction, cerebral spinal fluid leakage and death. I find that it is reasonable that the plaintiff does not want to subject himself to such risks.”

In rejecting the failure to mitigate, the trial judge furthermore placed emphasis on the neurosurgeon’s evidence that it was not unreasonable for the injured claimant to refuse surgery due to the “material risks” in stating:

“…only Mr. Domijan can make the decision whether to have the surgery given the material risks….based on my clinical experience, many young patients are reluctant to expose themselves to the risks associated with lumbar disc arthroplasty or lumbar disc fusion.”

See this prior blog post on an award reduced by 50% where the injured claimant failed to mitigate,

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