When you are injured in a car accident and claim damages from
ICBC, you are under an obligation to "mitigate" your
damages, that is, to take reasonable steps to minimize your
In the recent case of Maltese v. Pratap, 2014 BCSC 18,
several medical professionals recommended that the plaintiff
undertake a program of physical rehabilitation and fitness with a
personal trainer, but the plaintiff did not do so. The judge found
that there would have been a significant improvement in the
plaintiff's condition had he undergone the recommended
treatment. The plaintiff's pain and suffering award was reduced
by 30% as a result. The Court stated at paragraph 52, "When
doctors recommend treatment and the advice is not followed, the
defendant [ICBC] must prove: first, that the plaintiff acted
unreasonably in not taking the treatment, and second, the extent to
which the plaintiff's damages would have been reduced."
The Court went on at paragraph 55: "The facts of this case
represent a textbook example of a failure to mitigate. There is a
consensus among the professionals who assessed and treated the
plaintiff that [he] needed to undertake a program of physical
rehabilitation and fitness with a kinesiologist or personal
trainer. Their recommendations are remarkably similar. [The
plaintiff] has chosen to ignore them."
Reductions for failure to mitigate may be more or less than 30%.
In the case of Latuszek v. Bel-Air Taxi (1992)
Limited, 2009 BCSC 798, the plaintiff's award was reduced
by 40% when the plaintiff failed to comply with an exercise regime.
At paragraph 85, the Court stated: "There is a duty at law to
take reasonable steps to minimize your loss, particularly where, as
here, conservative treatments have been recommended. ... [The
doctor] recommended exercises in the pool and gym and brisk
walking. [The plaintiff] says he swam once in a while, but he did
not go to the gym or do brisk walking. ... [The plaintiff] does
very little regular exercise of any kind, except once or twice a
week. He did not try yoga, massage therapy, relaxation therapy or
the medications as recommended by his psychiatrist. ... [H]e
understands that ... exercise, may improve, if not cure, his
symptoms. The plaintiff has not prioritized his recovery."
Juries may also apply a reduction to a plaintiff's pain and
suffering award, as occurred in Ogilvie (Litigation guardian
of) v. Mortimer, 2008 BCSC 634. The mitigation argument is not
limited to cases heard by judges.
It is possible that the Court may find it reasonable in certain
circumstances for an accident victim to decline a treatment
recommended by a doctor, meaning that even though a plaintiff did
not follow his or her doctor's advice, there is no reduction to
the general damages for failure to mitigate. For example, in the
case of Ayoubee v. Campbell, 2009 BCSC 317, the plaintiff
declined recommended surgical treatment on the basis that the
surgery may not have resolved his complaints had he elected to
proceed. This outcome is the exception to the rule, however, and
generally speaking, if you are claiming injuries from a car
accident then the best course of action when your doctor advises
you to pursue a given treatment is to follow your doctor's
The overriding question for the Court is what is reasonable in
the circumstances, as set out at paragraph 37 of Middleton v.
Morcke and Lee, 2007 BCSC 804: "[t]he plaintiff is not
held to a high standard of conduct in mitigation; the law is
satisfied if the plaintiff takes steps that a reasonable person
would take in the circumstances to reduce the loss." In
assessing the reasonableness of refusing to take treatment, the
Court should take into consideration the risk of the treatment, the
gravity of the consequence of refusing it, and the potential
benefits to be derived from it (Janiak v. Ippolito, 
1 S.C.R. 146).
If you need assistance with your ICBC claim, the litigation
department at Drysdale Bacon McStravick LLP can help.
The content of this article is intended to provide a general
guide to the subject matter. Specialist advice should be sought
about your specific circumstances.
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In Irwin v. Alberta Veterinary Medical Association, 2015 ABCA 396, the Alberta Court of Appeal found that the "ABVMA" failed to afford procedural fairness to a veterinarian undergoing an incapacity assessment.
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