29 Jun Mitigating Your Losses

If you are involved in a motor vehicle accident and you don’t do everything you can to mitigate your losses, ICBC may try to argue that your damages should be reduced as a result.

In Biefeld v. Neetz, 2016 BCSC 689, the Plaintiff was involved in a motor vehicle accident in 2007 while driving near Kamloops.  As a result of the Accident, the Plaintiff claimed to have suffered a number of injuries, including to her neck, left shoulder, left arm and left hand.  She returned to her job as a certified educational assistant but her symptoms eventually caused her to leave her job in October, 2014.

ICBC did not dispute that the Plaintiff was entitled to compensation for the injuries she suffered in the accident.  However, ICBC disputed that the injuries suffered by the Plaintiff had caused all of the difficulties and losses she claimed to have suffered in the past and would likely suffer in the future.

One of the arguments that the lawyer for ICBC made was that the Plaintiff had failed to take reasonable steps to mitigate her losses, so her damages should be reduced accordingly.  He argued that the Plaintiff failed to mitigate because: (a) she didn’t follow recommended treatment; and (b) she didn’t seek lighter duty work or part-time hours (or both).

The Court noted that if the Plaintiff had not pursued a course of medical treatment recommended by doctors and the Defendant sought to have damages reduced on that basis, the Defendant had to prove two things:  (1) that the Plaintiff acted unreasonably in not following the recommended treatment, and (2) the extent, if any, to which the Plaintiff’s damages would have been reduced had she acted reasonably.

The mitigation test is a subjective/objective test in which the Court has to decide whether the reasonable patient, having all the information at hand that the plaintiff possessed, ought reasonably to have undergone the recommended treatment.  The second aspect of the test is the extent, if any, to which the plaintiff’s damages would have been reduced by that treatment.

In this case, the Court determined that ICBC made little effort to prove that the Plaintiff’s conduct following the accident resulted in a more limited recovery than she otherwise would have had, had she pursued active rehabilitation more vigorously, and accepted recommendations concerning medication.  The Court also agreed that ICBC failed to show how, if the Plaintiff had acted differently, it would have improved her long-term medical outcome.  Accordingly, the Court found that ICBC had not met the burden to prove that the Plaintiff failed to mitigate her damages.