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Reduction in Pain and Suffering Award for Failure to Mitigate


This injury claimant’s failure to follow medical advice resulted in a 10% reduction in the award for pain and suffering. The claimant was stopped at a red light at East 49th Avenue and Knight Street in Vancouver when his vehicle was rear-ended.  The court found that he suffered soft tissue injuries to his neck, back and right shoulder.
In reducing his pain and suffering award by 10% the judge commented:

[128]   A plaintiff has an obligation to take all reasonable measures to reduce his or her damages, including undergoing treatment to alleviate or cure injuries: Danicek v. Alexander Holburn Beaudin & Lang, 2010 BCSC 1111 at para. 234. See also Graham v. Rogers, 2001 BCCA 432 at para. 35; leave to appeal refused, [2001] S.C.C.A. No. 467.

[129]     Once the plaintiff has proved the defendant’s liability for his or her injuries, the defendant must prove that the plaintiff acted unreasonably and that reasonable conduct would have reduced or eliminated the loss. Whether the plaintiff acted reasonably is a factual question and it involves a consideration of all of the circumstances: Gilbert v. Bottle, 2011 BCSC 1389 at para. 202.

[130]     A failure to mitigate is a defence to the amount of damages that the defendant is obligated to pay: Janiak v. Ippolito, [1985] 1 S.C.R. 146 at para. 36…

[138]      The evidence establishes that (the Claimant) substantially ignored all of the medical advice to get more active on a daily basis, beyond his activities at work. There were sporadic attempts at yoga and badminton. He also made feeble attempts to use the treadmill and elliptical machines. He did the odd hike with his family. The most consistent activity he appears to have undertaken were walks with his wife, although that was only about twice per month…

[145]     In addition, I find that the medical evidence and even (the claimant’s) own evidence supports that, on a balance of probabilities, he would have shown more and more rapid improvement in his condition had these exercise and stretching programs been undertaken…(Nguyen v. Bhatti,2017 BCSC 1537 )

The court awarded the sum of $45,000 for pain and suffering non-pecuniary damages, less a 10% reduction for the failure to mitigate, resulting in a net award of $40,500.
Posted by Personal Injury Lawyer Mr. Renn A. Holness, B.A. LL.B.

Tags: Duty to Mitigate, Failure to Mitigate, icbc case examples, Pain and Suffering

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