07 Dec ICBC Tries to Penalize Injured Motorist for Reduced Activity During COVID

In Leung v. Mok, 2020 BCSC 1456, the Plaintiff was involved in two motor vehicle accidents.  The COVID-19 pandemic interrupted the Plaintiff’s recovery.  He testified that before the pandemic, he was getting better and had recovered about 80-85%. However, since physiotherapy and other treatments were unavailable due to the pandemic, the Plaintiff’s symptoms worsened.

About two weeks after the pandemic “lock-down” began in British Columbia in March 2020, the Plaintiff started doing yoga at his home to help with his symptoms.  He was also skipping on his balcony and doing sit-ups.  He was not able to go to the gym or to physiotherapy, chiropractic, or massage treatments.

The Plaintiff’s condition worsened because he exercised less at the beginning of the pandemic.  He explained that he tried to stay at home as much as possible to respect COVID-19 social distancing rules, and that it was not feasible for him to buy gym equipment for his 750 square foot apartment.

At the time of trial, the Plaintiff was unsure when he would be able to go back to working at his office.  His office was ergonomically designed to reduce strain on his lower back, neck, and shoulders.  His home office was not.

The Plaintiff found himself becoming less efficient at work when his neck and lower back symptoms increased during the pandemic.  Prolonged sitting or being immobilized caused his neck and his back to get very stiff, even when he was sleeping.  When trying to work, the best he could manage at his desk was 1.5 hours before he experienced stiffness.

As the restrictions of the pandemic eased and the Plaintiff once again began to receive treatment, his symptoms improved.  He testified that resuming physiotherapy had been very helpful.

ICBC argued that while the Plaintiff’s inactivity after the COVID-19 lock-down contributed to the worsening of his symptoms, this was not an inevitability.  ICBC further argued that the Plaintiff’s inactivity during this period was similar to a failure to mitigate because he did not follow the active exercise regime that was recommended by his doctors.

For a failure to mitigate to apply, ICBC had to prove: 1) the Plaintiff acted unreasonably in forgoing recommended treatment, and 2) that the Plaintiff’s damages would have been reduced had he acted reasonably.

The judge held that ICBC had not discharged their burden of demonstrating that the Plaintiff unreasonably avoided any recommended treatment.  She accepted the Plaintiff’s evidence that he continued with some physical exercises after the pandemic struck, although he reduced his level of exercise. Nevertheless, it was not appropriate to hold him accountable for his physical setback in recent months.  While he may have made more effort to stay physically fit, he made sufficient effort given the unusual circumstances surrounding the pandemic.  He reasonably balanced the restrictions imposed by the pandemic with his recovery efforts. The judge was satisfied that if the pandemic had not struck, it was more likely that not that his condition would not have worsened as it did.

The judge awarded the Plaintiff non-pecuniary damages of $70,000.  However, because of his pre-existing conditions and symptoms, she felt it was appropriate, reasonable and fair to apply a negative contingency of 35%.  This reduced the Plaintiff’s award to $45,500.