COURT CASES on MITIGATION
If you have been injured in a car accident, and you bring an ICBC claim for damages, then the law expects you to mitigate your damages. Mitigate is another word for lessen or reduce. In other words, the law expects you to take active, reasonable steps in the rehabilitation process in order to minimize your losses in your ICBC claims. So, if a person does not seek any treatment whatsoever, they will receive an insubstantial offer compared to someone who took active, reasonable steps by seeking regular treatment. The theory is that you cannot expect a large sum of money after not making any efforts at rehabilitation as, if you had sought treatment, then you would likely be much better sooner rather than later.
DISCUSSION of the LAW of MITIGATION
In Gregory v ICBC, the British Columbia Court of Appeal discussed the law of mitigation of damages. The trial judge had allowed a 10% reduction for failure to mitigate, ruling that the Plaintiff had not taken cortisone injections. The Plaintiff appealed, and was successful, as there was no evidence that such injections could have improved the Plaintiff’s problems.
 In Chiu v. Chiu, 2002 BCCA 618 at para. 57, this Court set out the test for failure to mitigate as follows:
 The onus is on the defendant to prove that the plaintiff could have avoided all or a portion of his loss. In a personal injury case in which the plaintiff has not pursued a course of medical treatment recommended to him by doctors, the defendant must prove two things: (1) that the plaintiff acted unreasonably in eschewing the recommended treatment, and (2) the extent, if any, to which the plaintiff’s damages would have been reduced had he acted reasonably. These principles are found in Janiak v. Ippolito,  1 S.C.R. 146.
 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. The Turner case, on which the trial judge relies, uses slightly different language than this Court’s judgment in Chiu: “there is some likelihood that he or she would have received substantial benefit from it …”.
POTENTIAL CONSEQUENCES of NOT LISTENING to YOUR DOCTOR’S SUGGESTIONS and/or ORDERS
In Jawanda v. Samra, the Plaintiff was injured in a car accident as a passenger in a t-bone collision. The Plaintiff brought an ICBC claim for damages for pain and suffering, diminished earning capacity, and future care. The Plaintiff claimed she still suffered from the motor vehicle accident related injuries by the time of trial, whereas ICBC’S lawyer submitted that the Plaintiff’s symptoms resolved within six months to a year. Despite the Court noting some inconsistencies in the Plaintiff’s evidence, the Court ruled that such inconsistencies did not undermine the overall credibility of the Plaintiff, and awarded $75,000.00 for non-pecuniary damages. ICBC”S lawyer argued that there should be a deduction for mitigation based on the fact that the Plaintiff stopped taking medication prescribed by her doctor, and did not engage in a home exercise regime suggested by her doctor. The Court rejected these submissions, and made no deduction for mitigation.
 Defendants’ counsel says one example of Ms. Jawanda’s failure to mitigate is her stopping the use of Tramacet because she felt it was causing drowsiness and fatigue and upsetting her stomach. Irrespective of whether she advised Dr. Parhar that that was the reason she stopped taking this prescription, I am not satisfied this in any way meets the heavy burden on the defendants to show that Ms. Jawanda has failed to mitigate her losses.
 The defendants also submit that Ms. Jawanda has failed to fully engage in an active exercise program. Ms. Jawanda testified that Dr. Parhar and Dr. Sidhu advised her to walk and do some stretching, a relatively minimal exercise rehabilitation regime. She testified she walks regularly and does the stretches “probably once or twice a week.” When asked why she did not do these exercises every day, Ms. Jawanda said she is often “too tired” but she has been doing them for four or five years. Even though it is a very modest exercise program and Ms. Jawanda could have stepped up her rehabilitation regime, I am satisfied she has followed Dr. Parhar’s recommendations to a substantial degree. Moreover, the plaintiff has continued to work with her pain on a regular basis. I accept that Ms. Jawanda has been as “active” as she can be. This was acknowledged by the medical professionals as being an important component in any rehabilitation program. In these circumstances I am not satisfied the defendants have established that Ms. Jawanda has failed to mitigate her loss.
In Peragine v. Serena, the Plaintiff was injured in a motor vehicle accident, and brought an ICBC claim for several heads of damages, including pain and suffering. The accident occurred when the Defendant left a stop sign, thereby causing a collision with the Plaintiff. Although liability was contested, the Court ultimately ruled in favor of the Plaintiff. ICBC’S lawyer attempted to argue that the Plaintiff failed to properly mitigate her damages by not heeding the advice of her family doctor and surgeon, however the Court rejected this submission.
 Counsel for the defendant argues that the plaintiff failed to mitigate her damages by not continuing with physiotherapy as was recommended by her family physician, by not trying other non-invasive treatment options and by not following the recommendations of Dr. Kokan following her arthroscopic surgery and resuming rehabilitation under the guidance of a personal trainer. She argues that, instead, the plaintiff simply went to the gym four – five times on her own and then ceased those attendances when the pain in her knee got worse.
 Michelle may well have “fallen through the cracks” in terms of the guidance (or lack thereof) that she has been given for her injuries. However, I cannot fault her for that lack of guidance. She was told by her physiotherapist that the treatments she was receiving were making her condition worse, so she stopped and consulted her family doctor who referred her to Dr. Kokan. Exploratory surgery was conducted which did not reveal anything significant, other than a large plica which was removed. She was advised to ice and rest her knee which she has been doing ever since. I find that, in the circumstances, the defendant has not shown that Michelle failed to take reasonable steps to mitigate her knee and other injuries that she suffered during the collision of March 13, 2009.
In Travelbea v. Henrie, the Plaintiff was injured in a car accident, and brought an ICBC claim for damages. The Plaintiff succeeded at trial, however an issue that came to light was the efforts that the Plaintiff had made at mitigating her damages. More specifically, ICBC’S lawyer argued that the Plaintiff failed to mitigate her damages by not taking medications prescribed by one of her doctors, and by not following a stretching regime suggested by another doctor. In allowing for a very modest deduction for failure to mitigate, the Court commented :
 The defendant argues that any award of general damages should be reduced on the basis that the plaintiff failed to mitigate the consequences of her injury. Her failure is said to consist of not taking the medication that Dr. Travlos recommended and not following Dr. Laidlow’s advice to pursue a targeted and supervised stretching regime.
 To succeed in the context of a personal injury claim, a defendant must prove that a qualified medical or other professional recommended a course of treatment or therapy; that the plaintiff failed to follow the recommendation; that the plaintiff’s failure was unreasonable; and that had the plaintiff pursued the treatment the consequences of his or her injuries would have been reduced.
 I am satisfied that the defendant has established that the plaintiff failed to reasonably mitigate the consequences of her injuries. I have taken into account the benefit that I think it likely she will derive from the exercise and the medication going forward in assessing her general damages. She would have experienced some benefit in the past had she followed the medical advice she received. The stretching would not (and will not) yield immediate results nor will those results be particularly significant in the plaintiff’s overall situation. The medicine will likely give some relief and that relief will be (and would have been) almost immediate. I think it reasonable to reduce the award of general damages by a modest amount to reflect the mitigation that would have occurred by now. I set that amount at $1,500.
In Carter v. Zhan, the Plaintiff was injured in a car accident, and brought an ICBC claim for several heads of damages, including pain and suffering, past loss of earning capacity, loss of future earning capacity, loss of housekeeping capacity, and costs of future care. Liability was not in dispute. The Plaintiff alleged to have suffered chronic pain for more than five years by the time of trial. The Plaintiff had some success at trial, however did not receive close to what was sought overall. An issue that arose was whether or not the Plaintiff properly mitigated her damages. ICBC’S lawyer argued that the Plaintiff did not, as she did not attempt therapies that had been recommended to her, such as an exercise program. The Court agreed with this aspect of the argument, however failed to find that ICBC’S lawyer proved that the Plaintiff’s damages would have been reduced had she acted reasonably. As such, the Court ruled that the Plaintiff did not fail to mitigate her damages.
 I have found that the plaintiff took a very passive approach to her treatment, and did not attempt therapies, such as the exercise program that Mr. Shew recommended, that might have been beneficial to her. However, in order to prove a failure to mitigate, the defendant must do more than show that the plaintiff failed to engage in treatment that could or might have been beneficial: Gregory v. Insurance Corporation of British Columbia, 2011 BCCA 144 (CanLII), 2011 BCCA 144, at para. 56.
 No details concerning the physiotherapist’s recommendation for stretching and exercise is in evidence. As a result, there is no reliable evidence as to what precisely was recommended and whether such treatment would have made a difference.
 In his evidence at trial, Dr. Richardson agreed that it was important for Ms. Carter to remain active. From this it might be inferred that he would have agreed with the occupational therapist’s recommendation for an exercise therapy program. However, there is no evidence that Dr. Richardson made any such recommendation to the plaintiff.
 In relation to her treatment, the plaintiff has relied almost exclusively upon the advice of Dr. Richardson as her treating professional. He testified that Ms. Carter has complied with his treatment recommendations. The difficulty for the defendants in this regard is that he made practically no recommendations for treatment at all.
In Hunt v. Ugre, the Plaintiff was involved in two motor vehicle accidents, and brought ICBC claims for damages arising therein. The Court ruled that the injuries sustained in both accidents were indivisible, meaning that apportionment of damages was not necessary. ICBC’S lawyer argued that a deduction should be made from the overall award of damages for failure to mitigate, more precisely the Plaintiff’s failure to heed the advice of his practitioners with respect to engaging in a weight loss and exercise program. The Court rejected the submissions of ICBC’S lawyer in this regard.
 Firstly, Mr. Hunt, from his perspective, has diligently pursued medical treatment for the soft tissue injuries he sustained in the Accidents. He regularly sought assistance from Dr. Vorobeychik. On her recommendation, he attended physiotherapy, massage and acupuncture treatments. He took the medication she prescribed. He tried swimming but discontinued that activity because he found that it aggravated his symptoms. He maintains that he has followed a routine for exercising at home. His main form of exercise was and continues to be walking. While I cannot find that Mr. Hunt struggled with life-long obesity, the medical evidence shows that he was significantly overweight prior to the 2004 Accident. He believes his weight is a “complicated” issue.
 I am not persuaded that a plaintiff in Mr. Hunt’s shoes, with his particular psychological issues and perceptions and pre-accident history ought reasonably to be expected to have undertaken a structured weight loss and exercise program. Moreover, the evidence falls short of establishing that had Mr. Hunt undertaken such programs, the symptoms from his soft tissue injuries would have improved or resolved any sooner than I have found those injuries did in fact resolve.
In Hsu v Williams, the Plaintiff was awarded damages, however this was reduced by 1/3 for failure to mitigate (take reasonable steps to rehabilitate yourself, and limit your losses)
 Mitigation goes to limit recovery based on an unreasonable failure of the injured party to take reasonable steps to limit his or her loss. A plaintiff in a personal injury action has a positive duty to mitigate but if a defendant’s position is that a plaintiff could reasonably have avoided some part of the loss, the defendant bears the onus of proof on that issue.
 In his very thorough report, Dr. Armstrong gave treatment recommendations. Although he applied a caveat, that “my remarks are my opinions and should not be understood as directives for the provisions of Ms. Hsu’s care” as that would be “at the discretion of her treating physicians and other care providers”, his report is the only medical opinion before the court.
 The plaintiff has largely not followed these recommendations.
 The importance of carrying out those recommendations is significant. Dr. Armstrong opined that the longer chronic sacroiliac joint dysfunction persists, the less favourable is the chance for significant improvement. Although his prognosis if the recommendations were carried out was guarded, in my view the plaintiff should have undertaken the recommendations by the witness she called to give evidence. In the circumstances, the plaintiff has failed to mitigate her damages. I would reduce the general damages award by one-third to account for this factor.
In Lim v. Anderson, the Plaintiff had received a steroid injection for impingement syndrome, which had provided temporary relief. Her surgeon recommended further injections or surgery, however she chose not to engage in these. ICBC’S lawyer argued that she failed to properly mitigate her damages, however the Court rejected this argument.
 A preliminary issue I must decide before assessing damages is whether the plaintiff has failed to mitigate her damages. The defendants must prove that the plaintiff failed to follow recommended treatment by a qualified practitioner that could have overcome or reduced her current or future problems: Papineau v. Dorman, 2008 BCSC 1443. The applicable standard is reasonableness. The defendants must demonstrate that the plaintiff unreasonably refused to follow the practitioner’s recommendations.
 The defendants say that the plaintiff initially disregarded the advice of her doctors in three ways: first, by failing to return to exercise; second, by not continuing with physiotherapy sessions; and third, by not following Dr. Yu’s recommendation of further injections or surgery for her shoulders. I will deal with each in turn.
 The overwhelming medical evidence is that Ms. Lim was advised to return to exercising “as she could tolerate”. She completed an active rehabilitation program, and I find she continues to exercise to some extent.
 The defendants’ real complaint in this regard is that Ms. Lim failed to follow Dr. Yu’s recommendation to do shoulder exercises at 50 repetitions per day. The plaintiff stopped doing the exercises because they hurt her and did not seem to be helping.
 Dr. Yu’s evidence did not support the defendants’ contention that the plaintiff’s failure to do the 50 repetitions per day has impaired her recovery.
 Here too, while Dr. Yu listed further injections or surgery as possible further treatments, he did not opine that they would fix the plaintiff’s problems with her shoulders. The injections offered at least temporary relief. The first and only one the plaintiff underwent gave her two months without pain. The plaintiff described the pain relief as “like a miracle”.
 It can be implied from the location of the space into which the steroid medication has to be injected, from Dr. Yu’s evidence and from Ms. Lim’s decision not to repeat it every two months despite the relief that followed, that the needle itself is unpleasant. Further, Dr. Yu acknowledged that injections are not always successful and that patients have to balance the pain of the injection against the pain without it. Surgery carries with it risks and time off work.
 A plaintiff is only required to do what is reasonable, and I do not find to be unreasonable Ms. Lim’s decision to decline further injections and surgery and to instead use pain medication to control her symptoms.
NOT WORKING PAST YOUR PLANNED RETIREMENT DATE
In Wangert v. Saur, the Plaintiff operated a train which was involved in a collision with a vehicle, whose driver died. The Plaintiff witnessed the horrific crash first hand, and brought an ICBC claim for damages for post-traumatic stress disorder (PTSD). In an Agreed Statement of Facts between the parties, the negligence of the Defendant was admitted. Before the accident, the Plaintiff had planned on retiring at the age of 55, and he still did, however he argued that had he not suffered psychological injuries as a result of what he saw, then he would have worked increased hours, thereby resulting in greater pensionable earnings. As such, the Plaintiff also sought reduced pension earnings. ICBC’S lawyer argued that the Plaintiff failed to mitigate his damages by not working beyond the time of his original planned retirement in order to secure greater pension earnings. Not surprisingly, this argument was rejected by the Court.
 In this case, I accept the plaintiff’s evidence that he had always planned to retire at the age of 55. He had spent many years working for CP Rail.
 The defendant did not cite any legal authority supporting his position that a plaintiff could have mitigated losses by working past his or her planned retirement age. I was also unable to find any.
 In my view, planning for retirement is a very important stage in a person’s life. When one has the opportunity to retire at a certain age, even though continuing to work remains available, the decision to retire is not entered into lightly. It is not for the tortfeasor to take the position that the plaintiff‘s failure to change his life plan due to an accident which occurred through no fault of his own, amounts to unreasonable conduct.
RETURNING to WORK AGAINST YOUR DOCTOR’S ORDERS
In Bradshaw v Matwick, the British Columbia Court of Appeal addressed the issue of when a Plaintiff ignores their doctor’s orders not to return to work, and to instead enroll in a rehabilitation program. The Court ruled that it was not unreasonable for the Plaintiff to have taken this position.
 The trial judge found that the plaintiff had acted reasonably in returning to work in August 2006, and that he had generally followed recommendations for rehabilitative exercise:
 In regards to Mr. Bradshaw continuing to work in August 2006, against his doctor’s advice, Mr. Bradshaw had no choice. The plaintiff had a less than accommodating employer. The plaintiff was aware that in order to keep his job, he had to work at his job. It would be reasonable for the plaintiff to conclude based on his job circumstances, that taking a substantial time off to recover would result in the loss of his job. The effects for the plaintiff in this respect would be devastating. He has worked for Rebelle for over twenty years. He has limited reading and writing skills which would make any new job which would require training difficult for him. It was not unreasonable for the plaintiff, in light of this circumstance, to make the decision to struggle on and hope for the best in his recovery while continuing to work.
 Additionally, the plaintiff had significant commitments to a wife and two children. He, at best, earns a moderate to good income in the $50,000 range. It is highly unlikely that he could have survived on the modest wage loss funds available to him either through the defendants’ insurer or through the employment insurance program. His wife, Ms. Bennett, has only ever worked part-time and although she no doubt contributes to the family expenses, the household consists of two adults, and two children, in a home they own with a mortgage.
 On appeal, the defendants point to evidence from the plaintiff’s doctor to the effect that he would have given the plaintiff a medical note recommending full-time rehabilitation if one had been requested, and to the employer’s evidence that it would have given the plaintiff a leave of absence if such a note had been provided. They also argue that the plaintiff presented only minimal evidence of his financial position in August 2006, and contend that the trial judge relied on inadmissible hearsay. The defendants say that, in the face of that evidence, the judge’s finding that it was reasonable for the plaintiff to return to work represents a palpable and overriding error.
 I am unable to accept the defendants’ assertion. There was considerable evidence concerning difficulties in the relationship between the plaintiff and his employer. In the circumstances, it was open to the trial judge to accept that the plaintiff had a reasonable apprehension that he might lose his employment if he did not return to work. While the evidence of the plaintiff’s precise financial position in August 2006 was limited, there was sufficient information before the trial judge to allow him to conclude that the plaintiff’s financial position was not sufficiently secure to allow him to risk losing his job.
 In any event, even if it had been unequivocally established that the plaintiff’s recovery was delayed by his decision to return to work in August 2006, it would not prove that the decision resulted in an exacerbation of his damages. The plaintiff’s immediate wage losses were significantly reduced by his decision to return to work. It is not at all apparent that any consequential increase in his non-pecuniary losses or subsequent wage losses would have offset the immediate gains. Thus, the defendants have failed to show that the decision to return to work in August 2006 resulted in any net increase in the plaintiff’s damages.
 The defendants also assert that the plaintiff failed to mitigate his damages by failing to continue with particular exercise programs, and failure to avail himself of certain therapeutic options.
 The evidence established that the plaintiff undertook a number of exercise and therapeutic programs in the course of his recovery. His doctor considered him to be generally well-motivated and compliant with his rehabilitation programs. The trial judge concluded:
 In regards to the suggestion that the plaintiff unreasonably refused to follow medical advice which would hasten his recovery, the balance of the evidence suggests that the plaintiff continually followed his doctor’s advice in regards to a structured exercise program. This has resulted in some improvement but not significant improvement. There is no satisfactory evidence before me that enhanced physiotherapy would have caused the plaintiff’s injuries to abate or improve faster than they have with the plaintiff following his doctor recommended exercise regime.
 As the defendants point out, there was evidence from which a different inference might have been drawn. The issue was, however, one for the trial judge. There was evidence supporting the inferences he drew, and it is not for this Court to interfere with those findings.
NOT BEING ABLE TO AFFORD TREATMENT to GET BETTER
In Brown v. Raffan, the Plaintiff was injured a car accident, and consequently pursued an ICBC claim for several heads of damages, including pain and suffering, income loss, diminished earning capacity, loss of housekeeping capacity, and cost of future care. There was no dispute as to liability. ICBC’S lawyer argued that there should be a deduction for failure to mitigate on the part of the Plaintiff for not seeking treatment, and for not doing home exercises. The Plaintiff argued that she could not afford treatment. The Court held that the impecuniosity of the Plaintiff did not translate to a failure to mitigate.
 The defendant must do more than show that the plaintiff failed to engage in treatment that could or might have been beneficial: Gregory v. ICBC, 2011 BCCA 144 (CanLII), 2011 BCCA 144, at para. 56. The defendant has produced no medical evidence to indicate that the extent to which the plaintiff’s damages would have been reduced had she acted reasonably: see Wahl v. Sidhu, 2012 BCCA 111 (CanLII), 2012 BCCA 111, at para. 32, citing Chiu v. Chiu, 2002 BCCA 618 (CanLII), 2002 BCCA 618.
 Moreover, the plaintiff testified that she did not attend physiotherapy because she could not afford the $20 per session user fee. I accept this evidence. In my view, it cannot be said that the plaintiff has acted unreasonably or failed to mitigate by failing to pursue treatment which she has no means of funding, and which ICBC has refused to fund.
 A number of other cases have considered the question of whether limited financial resources can be considered when assessing whether a plaintiff has acted unreasonably in failing to undertake the recommended programs or therapies.
 In light of these decisions I do not accept the principle set out in Smyth. Instead, the question for this Court is whether the defendant has met its burden of demonstrating that the plaintiff acted unreasonably in eschewing the recommended treatment. This is a factual decision to be determined in the circumstances of each case. I am not satisfied that the defendant has established that the plaintiff acted unreasonably by failing to undergo physiotherapy treatment that she could not afford to pay for.
In Rozendaal v. Landingin, the Plaintiff was injured in two motor vehicle collisions, and brought ICBC claims for damages resulting therein. Due to a lack of financial resources, the Plaintiff was unable to obtain as much treatment as she would have liked. ICBC’S lawyer argued that the Plaintiff failed to take proper steps to rehabilitate herself. The Court, however, rejected this assertion, and did not allow for any partial deduction for failure to mitigate.
 The question is whether Ms. Rozendaal acted unreasonably by failing to undertake the recommended therapies or programs. I find that in her particular personal circumstances, she did not.
 Active rehabilitation was suggested to Ms. Rozendaal only in April 2011, more than two years after the second accident. Moreover, its cost was out of reach for Ms. Rozendaal and her young family.
 As I find, Ms. Rozendaal’s life circumstances left her unable to fund any form of ongoing treatment or therapy. From their early days together, she and Mr. Landingin have worked extremely hard to educate themselves for careers and to provide financial support and loving care for their young family. It is clear from the evidence that life was not easy for them. I have no difficulty accepting that other financial priorities displaced ongoing physiotherapy or active rehabilitation for Ms. Rozendaal, particularly since it seemed to her that massages from Mr. Landingin and exercises she did at home were just as helpful.
 The law does not require perfection in the pursuit of rehabilitation. It requires instead that a plaintiff make efforts which are reasonable and sincere in the plaintiff’s own personal circumstances: Gilbert at para. 203.
In Trites v Penner, the Plaintiff’s medical benefits were cut off by ICBC before he was recovered. The Plaintiff was then not able to afford to keep going to treatment. The lawyer for ICBC argued that the Plaintiff had failed to mitigate (lessen) his damages, however the Court disagreed.
 Financial circumstances are certainly one factor to consider in the overall reasonableness assessment of whether a plaintiff has failed to mitigate their losses. What is reasonable will depend on all the surrounding circumstances. One significant factor in this case however, is that as Mr. Trites was on his upward climb to recovery, ICBC determined that it would discontinue funding his efforts at rehabilitation. As a consequence, Mr. Trites was left to fund his continued rehabilitation on his own. Instrumental to continuing his recovery and functioning was not only attendance at the gym but other treatment modalities including massage therapy and chiropractic treatments and taking prescription medication. All of these items had significant benefits to Mr. Trites but they also carried with them significant costs. In the first half of 2007, Mr. Trites was unable to fund all these aspects of treatment and chose the prescription medication as it was essential to his pain management on a daily basis.
 I find that in these circumstances, Mr. Trites’ decision not to continue with a gym pass on a monthly basis for the first six months of 2007 was not unreasonable. This is not a case where the plaintiff has refused to take recommended treatment. Rather Mr. Trites was engaged in all aspects of the recommended treatments and ICBC was, until December 2006, paying for them. Thereafter ICBC unilaterally discontinued paying for these treatments, notwithstanding the fact that Mr. Trites was not yet fully recovered. I cannot find that Mr. Trites acted unreasonably in determining how best to try and pay for all the treatment modalities that had been working for him in assisting his rehabilitation but were no longer going to be paid for by ICBC and were beyond his limited means at the time. As Smith J. noted in O’Rourke v. Claire,  B.C.J. No. 630 (S.C.) at para. 42 “it does not lie in the mouth of the tortfeasor to say that a plaintiff in such circumstances has failed to mitigate by failing to arrange and pay for his own rehabilitative treatment.”