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Vancouver ICBC Injury Duty To Mitigate

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Vancouver ICBC Injury Duty To Mitigate

Our Vancouver ICBC Injury Duty To Mitigate lawyers educate our injured Vancouver ICBC car accident victims that ICBC adjustors and defence lawyers have one goal. Our Vancouver ICBC Injury Duty To Mitigate lawyers are well aware that the ICBC defence team’s primary mission is to keep settlements low.  Sadly, they often start from the proposition that their injured car accident victims (who promptly pay their car insurance every year) are malingering or exaggerating their injuries for their financial gain. A skilled Vancouver ICBC Injury Duty To Mitigate lawyer knows how to ensure our clients do not get short changed on their ICBC injury claim settlements.

Vancouver ICBC Injury Duty To Mitigate

Lorne MacLean, QC head of Vancouver ICBC Injury Duty To Mitigate Lawyers

We Won’t Let You Fall Prey To Failure To Mitigate Defences But You Must Call 1-877-602-9900

To ensure you are not disrespected or offered a unreasonably low settlement, our Vancouver ICBC Injury Duty To Mitigate lawyers will we make sure you understand that following medical treatment advice is imperative. Any missed appointment, any forgotten pain or symptom, any failure to get to a treatment session will all be thrown in your face. ICBC will use these lapses to reduce the proper amount of money you are owed for lost income, opportunities, and your pain and suffering.

What is The Plaintiff’s Duty To Mitigate And How Can You Avoid A costly Mistake?

So what do we ensure our clients do so they put the most money in their pockets. We explain to our clients we want them to heal fully, to get theist treatment and to win a settlement or trial that puts the most money ion their pockets. In a recent case BC Supreme Court Case Mr. Justice Weatherill reduced an award by 20 percent and explained the law while he was at it:

Mitigation

[133]     The test for failure to mitigate was set out in Chiu v. Chiu, 2002 BCCA 618 at para. 57

[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.

[134]     The mitigation test is 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”: Gregory v. Insurance Corporation of British Columbia, 2011 BCCA 144 at para. 56.

[135]     The plaintiff attended a walk-in clinic on November 21, 2011, January 5 and February 24, 2012, and saw his family doctor on April 18 and June 22, 2012.  On each occasion, he was given a prescription for pain medication and advised to undergo a program of rehabilitation under the direction of a physiotherapist.  The plaintiff chose not to follow this advice. 

[136]     In more than four years since the MVA, the plaintiff saw a physiotherapist only twice, once on June 25, 2012 and once on November 17, 2015.  Instead, he opted for a self-prescribed exercise program which he testified consisted of stretching at home and attendances at the gym two or three times per week despite it not providing relief of his pain symptoms.  I find it is unlikely that the plaintiff performed the self-prescribed exercise program or any other exercise program as often as he said he did prior to January 2014, when Ms. Gibson moved in with him and began to motivate him to exercise.

[137]     I accept the prognosis opinions of Drs. Bowlsby and Boyle that, had the plaintiff initiated and maintained physiotherapy treatments as he was advised to do, it is probable that he would have been able to return to work as a heavy duty mechanic at the Port within twelve months of the MVA.  Indeed, Ms. Andrews shared that sentiment and made recommendations in that regard.  However, the plaintiff continues to ignore that advice.  Rather, he has decided to await the outcome of what he described as “nuclear MRI testing” currently scheduled for August 2016.

[138]     While I accept that the plaintiff is not a malingerer and that his injuries are persisting, the defendants have satisfied me that the plaintiff ought to have followed the advice of his medical practitioners and undergone a program of rehabilitation under the direction of a physiotherapist.  They have also satisfied me that it was unreasonable for the plaintiff not to have done so and that, if he had done so, it is more probable than not that there would have been some significant recovery from his MVA-related injuries within twelve months of the MVA.

[139]     The defendants are entitled to an adjustment in the plaintiff’s damages to account for my finding of fact that he would have recovered from his MVA-related injuries sooner if he had implemented and maintained the recommended physiotherapy programs.  I am satisfied that a deduction of 20% is appropriate. 

[140]     Accordingly, the plaintiff is entitled to an award for non-pecuniary damages equal to $75,000 x 80% = $60,000.

[151]     I find that, had the plaintiff undertaken the rehabilitation that was recommended to him, there is a real and substantial possibility that he would have been able to resume his part-time work at the Port within 12 months.  Accordingly, the defendants are entitled to an adjustment in the plaintiff’s award for past loss of income for the period 2013 to the date of trial.  I am satisfied that a deduction of 20% is appropriate.  Accordingly, the award for this period is reduced to $73,948.

Vancouver ICBC Injury Duty To Mitigate Alert

So the moral of the story for our ICBC Injury Duty To Mitigate lawyers clients is- that not following a doctor’s advice is not only unwise but also very costly. Our ICBC Injury Duty To Mitigate lawyers won’t let you make such a costly error. Meet with us for free right after an accident so you don’t follow an accident with a costly mistake.



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