Plaintiff Award Reduced by 50% for Failure to Mitigate in Car Accident Case

The goodfirm ICBC personal injury lawyers want to draw attention to a recent judgement from the BC Supreme Court where a plaintiff in a car accident had her award reduced for failing to mitigate.

In Mullens v. Toor, 2016 BCSC 1645, Ms. M was injured on her drive home from work. Although her injuries were not severe, she did not return to her work as junior management position at a bank. She claimed damages in total of $2,766,837.03 while counsel for ICBC argued for a more modest $222,152.

Prior to the accident, Ms. M was relatively healthy and there was no evidence of any significant pre accident injuries or health conditions. As a result of the accident, Ms. M suffered mainly psychological injuries such as anxiety and depression.

Counsel for ICBC argued that the plaintiff failed to take steps to mitigate her damages and return to work. Questions of mitigation often arise in two contexts; where a plaintiff fails to undergoes certain medical treatment or therapies and where a plaintiff fails to return to work. In analyzing whether there has been a failure to mitigate by refusing to undergo treatment, the court relies on the test set out in Gregory v. Insurance Corp. of British Columbia, 2011 BCCA 144 at para. 56,

“I would describe the mitigation test as a subjective/objective test. That is 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[Emphasis in original.]”

Where a plaintiff fails to return to work, the analysis set out by the court of appeal in Parypa v. Wickware, 1999 BCCA 88 (CanLII),

“[67] These cases demonstrate that the trier of fact, in determining the extent of future loss of earning capacity, must take into account all substantial possibilities and give them weight according to how likely they are to occur, in light of all the evidence. However, in calculating such likelihoods, the plaintiff is not entitled to compensation based solely on the type of work she was performing at the time of the accident. There is a duty on the plaintiff to mitigate her damages by seeking, if at all possible, a line of work that can be pursued in spite of her injuries. If the plaintiff is unqualified for such work, then she is required, within the limits of her abilities, to pursue education or training that would qualify her for such work. If the plaintiff claims she is not able to mitigate by pursuing other lines of work or by retraining, she must prove this on a balance of probabilities. The requirement for mitigation is addressed by this court in Palmer, supra, at 59:

A plaintiff is not entitled at the cost of the defendant to say, “The only sort of work I like is such and such. I cannot do that. Therefore, you must give me sufficient capital to replace the income I cannot earn on that sort of job”.

What the respondent proved in this case was that he had lost his capacity to follow the sort of occupation he was pursuing at the time of the accident. But that did not prove, on a balance of probabilities, that he could not earn by pursuing some other sort of occupation, as much as before.”

In applying the tests, Mr. Justice Verhoeven found that the plaintiff failed to mitigate by both refusing to undergo treatment and failing to return to work. Mr. Justice Verhoeven found that the plaintiff should have attempted to return to work, even if she could only do so with limitations. He found that had the plaintiff had made an attempt there was a likely chance she would have been successful at resuming her former career path. He also relied on the testimony of medical experts in finding that a return to work would have benefitted the plaintiff’s mood disorder, in addition to mitigating her pecuniary losses.

In terms of medical treatments, Mr. Justice Verhoeven found that the plaintiff had been resistant and reluctant to accept that her psychological condition required psychiatric treatment and medication. He ultimately concluded that embarrassment about accepting treatment for a mental injury is not a valid excuse.

In assessing damages for past loss of earnings and earning capacity, Mr. Justice Verhoeven awarded $138,623 but reduced that amount by 50% for the failure to return to work.

In assessing damages for loss of future earnings and earning capacity Mr. Justice Verhhoeven awarded $350,000 but reduced that amount by 50% for the failure to mitigate.

For pain and suffering, the plaintiff sought an award of $200,000. She was awarded $140,000 with a 50% reduction for failure to mitigate.

This case illustrates how important it is for a plaintiff to follow their doctor’s advice and make all reasonable efforts to return to work. In Mullens, failing to do so cost the plaintiff a significant amount of money.

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