27 Apr Mitigating Your Losses

Whenever a plaintiff suffers injury due to the negligence of another person, they have a duty to take reasonable steps to get better and reduce the damages payable by the defendant. The defendant is not liable to pay the plaintiff any damages resulting from the plaintiff’s failure to seek treatment or follow medical advice.

In the recent case of Cyr v. Kopp, 2016 BCSC 679, the Plaintiff was a 39 year old mechanic who was injured when he was rear-ended by a 10 ton truck. As a result of the accident the Plaintiff sustained soft tissue injuries to his shoulders, back and neck. He could no longer continue with his employment at the Port of Vancouver.

A significant issue in this case was the Plaintiff’s failure to mitigate his damages. Soon after the accident, the Plaintiff attended a walk- in clinic, as well as his family doctor. During each visit he was advised to undergo a program of rehabilitation under the direction of a physiotherapist. In the four years following the accident the Plaintiff only saw a physiotherapist twice. Mr. Justice Weatherill noted that the Plaintiff was a credible witness but that he was “reluctant to follow the advice of medical practitioners and, instead, prefers to rely on his own self-directed rehabilitation regime”.

The Court held that if the Plaintiff had undergone the recommended program of physiotherapy, it was likely that he would have had a more significant recovery from his accident, and it was therefore unreasonable for him to refuse this course of treatment.

As a result of the Plaintiff’s failure to follow the medical advice of his doctors and undergo physiotherapy treatments, the Court reduced his overall award by 20%, a reduction of almost $65,000.

This case highlights the importance of following the reasonable medical advice of your doctors. It’s what’s best for the case and it’s what’s best for you. At Acheson Sweeney Foley Sahota we work with you and your doctors to make sure you are taking all the reasonable steps necessary to get better and fulfill your duty to mitigate.

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