05 Oct Mitigation

In many cases, the Courts have reduced an award for damages due to a Plaintiff’s failure to mitigate. Examples commonly argued by ICBC include failing to pursue a recommended therapy or medication recommended by doctors, failing to lose weight and become more physically fit, and failing to pursue psychiatric recommendations.

In the recent case of Castro v. Krause, 2015 BCSC 2074, the Plaintiff refused to follow her doctor’s recommendations with respect to her depression.  Instead, she chose to bury herself in work and tried to increase her social networking with friends.  She claimed that she had taken anti-depressant medication in the past and it had a “zombie-like” effect on her, so she stopped taking it.

ICBC argued that the Plaintiff’s award for non-pecuniary loss should be reduced because she failed to follow her doctor’s advice to take anti-depressant medications, attend counselling sessions and undertake an active exercise program.  She also hid certain symptoms from her doctor.  ICBC said that if the Plaintiff had followed the advice of her doctors and addressed her problems earlier, her prognosis would have been considerably better.

The judge agreed with ICBC.  The judge decided that the Plaintiff had to bear some responsibility for addressing her own wellness.   It would be unfair to ICBC to bear the full cost of a treatable medical condition which goes untreated, particularly after a specialist had made recommendations.  The judge reduced the Plaintiff’s non-pecuniary damages by 20%, from $90,000 to $72,000. The judge also ordered that the Plaintiff’s damages for loss of future income earning capacity be reduced by 25%, from $50,000 to $37,500.

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