22 Jul Failure to Mitigate

Most people injured in a motor vehicle accident follow their doctor’s advice and undertake the treatments or therapies recommended to assist them in their rehabilitation.  But sometimes an injured person fails to do so. When this happens, ICBC will bring this failure to mitigate to the Court’s attention.

The “failure to mitigate” defense rests on the premise that an injured party must act reasonably to minimize damages.  ICBC, on behalf of the Defendant, has two elements to prove:

  1. Firstly, that the Plaintiff acted unreasonably by failing to undertake a recommended treatment, and
  2. Secondly, that the Plaintiff’s damages would have been reduced if he or she acted reasonably.

In Mojahedi v. Friesen, 2016 BCSC 1225, ICBC argued that the Court ought to reduce the Plaintiff’s damage by 30% because he failed to mitigate his damages.  ICBC argued the Plaintiff failed to mitigate because:

  1. He started physiotherapy and an active exercise program much later than his family doctor recommended (8 and 12 months, respectively);
  2. He failed to follow his doctor’s advice. In particular, he attended a chiropractor when his doctor recommended swimming;
  3. He did not tell his doctor that he took his brother’s Tylenol #3s;
  4. He exchanged his Celexa prescription for marihuana at a marihuana dispensary; and
  5. He incorrectly told his doctor that he followed his advice and started physiotherapy earlier than he actually did.

The Court noted the law holds a Plaintiff to a standard of reasonableness, not perfection.  While it would have been advised for the Plaintiff to start physiotherapy and an active exercise program sooner, it was not unreasonable.  In addition, the Defendant did not provide any evidence that starting physiotherapy or an active exercise program earlier would have reduced his symptoms.  It is not enough for a Defendant to show that earlier treatment was “more likely” to be effective.

Regarding the other points, the Defendant did not prove that the Plaintiff’s damages would have been reduced if his doctor had been more fully aware of his situation.

As a result, the Court did not reduce the Plaintiff’s damages based on a failure to mitigate and awarded him damages in the amount of $282,687.73.

At Acheson Sweeney Foley Sahota, we understand the importance of getting our clients into treatment programs as soon as possible and we ensure they get the best medical care possible.

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