FAILURE TO MITIGATE PAST INCOME LOSS – WHEN SHOULD YOU CONSIDER CAREER RE-TRAINING IN ORDER TO GET A NEW JOB?
If you’ve been injured in an accident that was not your fault, ICBC is supposed to pay you money to compensate you for your losses. The money ICBC pays you is also supposed to include compensation for the income you lost due to the fact that you can’t work in your chosen occupation. Sometimes, ICBC will argue that you should have gone out and found a different job or continued to work at your old job in a reduced capacity. In legal terms, this is called “mitigating your loss.”
Sometimes, our Vancouver ICBC accident clients will ask us, do I need to get a new job? Should I take some kind of re-training course? Can I just work part-time? What is my responsibility in terms of seeking an alternative source of employment?
In legal terms, the burden is on the Defendant to prove a failure to mitigate, however, the Plaintiff has the positive obligation to take reasonable steps to reduce his or her damages, whether they be related to income loss, or treatment of injuries sustained. In other words, ICBC and the negligent driver responsible for the accident, (the defendants), want to reduce the amount of money you get for your losses, they have to prove that you (the injured plaintiff), didn’t take “reasonable steps” either to continue working at your current job or find a new job. The answer to this riddle depends entirely on what the Court considers “reasonable.”
In the BC Supreme Court recent decision of Sendher v. Wong, 2014 BCSC 140, was exactly this kind of case. The lawyers for ICBC argued that the injured Plaintiff had failed to mitigate her past income loss by not seeking a new job or engaging in retraining.
The Plaintiff, Ms. Sendher, was a pediatric oncology nurse, which was a very physically demanding job. She did not look for alternative work in the years leading up to trial because she loved her job. Instead, she decreased her hours to part time (about 63% of full-time) so that she could keep her job and work within her tolerance level. In this case, the Court decided that although the Plaintiff would eventually have to retrain for a less physically demanding position, (given the fact she now had the benefit of time and medical advice), her decision to reduce her hours to part-time up to the date of trial were reasonable.
Mr. Justice Verhoeven further found that the ICBC failed to meet its burden of proof. The Court held that there was no evidence provided by ICBC at trial that the Plaintiff’s loss of earnings would have been lessened byre-training, or that a viable and reasonable career option even existed for Ms. Sendher in the past.
It is important to remember that what the Court considers “reasonable” in one set of circumstances might not be considered reasonable if the circumstances of your employment and injuries are a lot different. For this reason, it is important to speak with knowledgeable and experienced lawyer who can provide you with the best advice for your circumstances. Our Surrey, Fort St John, Kelowna, and Vancouver personal injury and ICBC claims lawyers are here to help.
You can reach us in Vancouver at 604-602-9000, in Surrey at 604-576-5400 or anywhere in British Columbia, including our Fort St John and Kelowna offices by calling 1-877-602-9900. You can also contact us online by clicking here. We always provide you with a FREE initial legal consultation and, once we start working on your case, we don’t get paid until ICBC pays you.
Here are the key excerpts from the Court’s decision in Sendher v. Wong:
 The plaintiff contends that her work as a pediatric oncology nurse is physically strenuous and she has great difficulty in completing her shifts. As noted, Dr. Gittens recommended consideration of a possible change of occupation, perhaps within the nursing field, in the event that treatment is ineffective and if her symptoms persist. She has not yet undertaken the treatment options recommended for her by Dr. Gittens and Dr. Purtzki.
 She has not considered taking any further training or education that might allow her to take on more sedentary, less strenuous work such as in supervision or administration. She does not wish to take a different job that would take her away from her work as a bedside nurse in pediatric oncology. She explains that she loves her work, is happy in it, and is focused on remaining where she is.
 As noted, Mr. Carlin confirmed that she said she was very unwilling to alter the nature and kind of work she was doing. He suggested other, more sedentary career options for her to consider. He suggests that she participate in vocational counselling.
 While one can have sympathy for her desire to remain in her present job and admiration for her dedication to it, the question is whether her position is unreasonable in the context of her claim for damages from the defendants.
 Ms. Sendher has now been working on a part time basis at .63 FTE, since September 2010, a period of more than two and a half years pre-trial. While she has managed to continue working, it has become obvious that this change alone has not caused her health to improve. I am satisfied that at this juncture, acting reasonably, given the advice that Ms. Sendher has received, unless her health improves (for example through treatment she has not yet undertaken), Ms. Sendher must consider retraining to a more sedentary occupation. To this extent I accept the submission of the defence.
 This will be relevant to consideration of future loss of earnings capacity.
 However I am not satisfied that the defence has established the extent to which, if at all, the plaintiff’s past loss of earnings damages would have been reduced had she acted reasonably in relation to seeking other work, prior to trial. The reduction in her hours as a means of adapting to her injuries was reasonable to a point. The plaintiff would have required considerable time for recovery and to evaluate her condition. It is reasonable to take time to consider her changed circumstances and to obtain medical and vocational advice. She now has that. The defence provided no concrete examples of other jobs that the plaintiff should have taken in the past, nor any evidence of alternative earnings in such jobs.