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Injury Claim Reduced by 10% for Failure to Seek Alternative Employment

Carpentry_Mitigation
After a car accident injury a claimant has a duty to mitigate, or minimize his or her losses. However this case takes mitigation to new levels, expecting a career carpenter to seek alternative employment or face a reduction in his injury claim (Klein v. Sangha,2016 BCSC 1864.
The claimant was 39 years of age at trial and was an experienced carpenter, having obtained journeyman certification 7 years before the first car accident. He is also qualified as a fire, water and smoke technician and worked for a restoration contracting business.
His injury claim arose from injuries suffered in two motor vehicle accidents one year apart from each other. The first accident occurred  when the claimant’s cargo van was “t-boned” by a driver travelling through a red light at the intersection of Kingsway and 14th Avenue in Burnaby. The second accident occurred when the claimants van was rear ended while he was stopped due to heavy traffic on Highway 1 near the 232nd Street exit in Abbotsford.

ICBC successfully argued that because he was unable to continue with his pre-accident line of work, he had a duty to seek out alternate occupations which would be less likely to exacerbate his back problems. As the judge stated, “I agree that the burden is on the plaintiff to prove on a balance of probabilities that he could not earn a comparable income from some other occupation; see: Parypa v. Wickware, 1999 BCCA 88 at para. 67.”  I went back to Parypa and actually quote for you what the Court of Appeal did say,

[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 this case we are reviewing today, there was no evidence that the injury claimant had investigated other employment opportunities.  However the judge did conclude that the claimant’s submissions on his inability to work for others on a full time basis had merit. Hence, his failure to seek out full time work would “appear to be a sensible decision”. Why then a 10% reduction for failure to mitigate?

The ICBC doctor, acknowledged that the claimant should undertake an “all encompassing” rehabilitation program including a fitness regimen complemented with physiotherapy and possibly acupuncture, massage and other therapy before returning him to full time work, possibly as a carpenter. His failure to pursue a strict rehabilitation program to date could have delayed his ability to return to full time employment and in the judges mind constituted a failure to mitigate.

The judge also agreed with the defence in that the claimant had not submitted any evidence of his attempts to find well-paying employment outside of construction or to find work that he could perform on a full time basis. In reducing  the injury award by 10% the judge comments,

[79]  However, based on the limitations referred to by Mr. Klein, I am convinced that it would be very difficult to find employment where he could work full time without undertaking considerable physical activity or significant periods of sitting or standing. Accordingly, I will reduce the award for past loss of income by an arbitrary percentage of 10% as opposed to the 15% arbitrarily suggested by the defence.

Posted by Personal Injury Lawyer Mr. Renn A. Holness, B.A. LL.B.

 

Tags: Duty to Mitigate, Failure to Mitigate, Mitigation

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