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Surrey Personal Injury Lawyer Explains ICBC Claims And Why You Don’t Want To Be A Victim Of A Costly Failure to Mitigate

Our Surrey personal injury clients often ask us how much their car accident claim is worth. They are also very curious to know what they should do to ensure they receive the highest ICBC claim settlement. We always provide a detailed winning strategy to our clients at our free initial consultation. We have free initial consultations at all 4 offices across BC in Surrey, Vancouver, West Kelowna and Fort St John. For a free consultation regarding your ICBC and Personal Injury Claims, contact our head personal injury lawyer office in Surrey at 604-576-5400 or contact us at any of our 4 offices by clicking here

Lorne MacLean, QC Managing Partner and founder of the MacLean Law Group and MacLean Personal Injury

Did you know that ICBC and a Judge hearing your personal injury case will give you less money if you fail to follow some simple steps?

Do you want to know what you can do to not lose thousands of dollars on your Surrey and Vancouver personal injury claim?

Our Surrey and BC personal injury lawyers can save you thousands of dollars if you follow the simple steps outlined below.

Any claimant (that’s you) with injuries resulting from an accident has an obligation to follow through with recommended medical treatments that will assist in the healing of their injuries. Failure to make reasonable attempts to follow your doctor’s recommendations may result in a reduction in any financial compensation you receive because of your accident.

In Jobs v. Van Blankers, 2009 BCSC 230, Madam Justice Ker described the plaintiff’s duty to mitigate as follows:

  • [107] The law imposes upon plaintiffs the duty to mitigate their losses. This includes taking reasonable steps to minimize any loss relating to injuries, so as to prevent

plaintiffs from recovering for harm and loss caused by their own neglect.

The BC Court of Appeal set out the test for demonstrating the failure to mitigate in Chiu v. Chiu.

  • [57] 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, [1985] 1 S.C.R. 146.

Whether or not a plaintiff has acted “unreasonably” in failing to pursue recommended treatments must be determined on a case-by-case basis. In Gregory v. Insurance Corporation of British Columbia, the BC Court Appeal overturned a trial judge’s decision to reduce the plaintiff’s damages by 10% because of her refusal to undergo cortisone injections for the treatment of her soft tissue injuries. In this case the claimant had done her own online research on cortisone injections, discussed it with her chiropractor and was under the belief that she had a tear in her shoulder tendon, as interpreted by the radiologist on MRI, that would not respond to a cortisone injection.
Madam Justice Garson described the mitigation test as whether the reasonable patient, having all the information at hand that the plaintiff possessed, ought reasonably to have undergone the recommended treatment [at p. 56]. She found that there was no compelling evidence that the plaintiff would have received substantial benefit from the cortisone injections and therefore the threshold for reducing an award, as described in Chiu, had not been met.

The Surrey MacLean Personal Injury lawyers warn that it’s critical that you talk to us about all of your health care providers’ recommendations and your decision to pursue recommended treatments. Surrey MacLean Personal Injury Lawyers can help you prevent the possibility that your award will be reduced because you failed to mitigate losses relating to your injuries.

Remember “It’s not about the money. It’s about justice. Then money.” Call us now at 604-576-5400 delay may hurt your claim.



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