As we have discussed in prior ICBC duty to mitigate blog posts, injured claimants have a legal duty to mitigate their injuries and losses from motor vehicle accidents. In other words, injured claimants have an obligation and a 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
Most commonly, ICBC will raise the issue of mitigation where an injured claimant has not gone to treatment or taken medication as recommended. Less common are situations where ICBC argues that an overweight injured claimant has failed to mitigate by not losing weight after a motor vehicle accident.
In Gilbert v. Bottle 2011 BCSC 1389, the injured claimant suffered a brain injury and physical injuries in a motor vehicle accident. One of the arguments ICBC made at trial was that the overweight injured claimant failed to mitigate her damages by not losing weight. In dismissing ICBC’s argument, the trial judge stated:
“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.”
In Fifi v. Robinson 2012 BCSC 1378, ICBC again argued that the overweight injured claimant failed to mitigate her damages by not losing weight. The trial judge relied on the above comments made in Gilbert v. Bottle and dismissing ICBC’s argument:
 The plaintiff is significantly obese. She refused to discuss her weight with Dr. Boyle, but allowed herself to be weighed and measured by Mr. Hunt. Dr. Phord-Toy testified that she is clinically obese, but declined to say that her obesity as such was impeding her recovery. Dr. Boyle simply recommends weight loss, without elaboration. There is no medical evidence that a reduction in body weight of itself would have improved the plaintiff’s condition. I infer that the plaintiff was already obese when the accident occurred. There was no evidence of weight gain post-accident. 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: Gilbert v. Bottle 2011 BCSC 1389, at para. 203.
 The defence has not established a failure to mitigate on the part of the plaintiff in failing to lose weight.