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Personal Injury Award Reduced due to Failure to Attend Treatment


In this failure to mitigate personal injury case(Maltese v. Pratap,2014 BCSC 18) the car accident occurred on Hastings Street in Burnaby after the claimant was  driving home from a Vancouver Canucks hockey game.  Another vehicle failed to stop and  struck the passenger side of the claimant’s vehicle in a T-bone fashion. The Claimant suffered neck and lower back pain and he testified that his shoulder injury, headaches, leg pain and sleep troubles had largely resolved by the time of trial.
However the Judge felt that, “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 injury claimant] has chosen to ignore them.”
The judge was quick to point out that an injury claimant is under a duty to mitigate, that is, to take reasonable steps to minimize his or her  loss despite who is at fault for the accident.  ICBC however bears the onus of proving the claimant could have avoided all or a portion of his loss, was was proven in this case.
It is important to know that when doctors recommend treatment and the advice is not followed, ICBC must prove: first, that the injury claimant acted unreasonably in not taking the treatment, and second, the extent to which the claimant’s damages would have been reduced. In this case the judge reduced the award due to failure to mitigate by 30% on: pain and suffering award of $40,000.00, past wage loss, loss of future earning capacity and loss of housekeeping capacity.
Posted by Personal Injury Lawyer Mr. Renn A. Holness
 

Tags: Car Accident Claim, ICBC Injury claim, Mitigation, Pain and Suffering, Personal Injury

2 responses to Personal Injury Award Reduced due to Failure to Attend Treatment

  • Whiplash Award Reduced to $30,000 for failure to follow Medical Advice | Holness Law Group

    July 24, 2015 7:57am

    […] claimant] has failed to mitigate via adequate and planned physical exercise, physiotherapy and counselling so as to alleviate her […]

  • Personal Injuries Overstated in Notice of Civil Claim | Holness Law Group

    September 17, 2014 1:17pm

    [...] The claimant was awarded $40,000 for pain and suffering which the Judge reduced by 20% or $8,000 as a result of the his failure to mitigate. [...]

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