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Vancouver ICBC InJury Lawyer

Vancouver ICBC Injury Lawyer -KNOWING THE LIMITS OF ICBC DEFENCES

You need a top Vancouver ICBC injury lawyer  when you’re hurt by another person’s negligence AND you’ve got to take reasonable steps to minimize the effects and loss related to your own injuries. Our top Vancouver ICBC Injury lawyer team knows standard fare for insurance companies and ICBC is to try to reduce your damages by highlighting your failure to mitigate damages. Our Vancouver ICBC Injury Lawyer team can be reached at 604-602-9000. Click here to get our address and directions. Spencer MacLean looks forward to meeting with you for free at our offices, your home, or the hospital. Tal Wolf of MacLean Personal Injury posts this blog to help guide our clients to success.

Vancouver ICBC Injury Laywer Wolf, MacLean, QC and MacLean

Vancouver ICBC Injury Lawyer Wolf, MacLean, QC and MacLean

An experienced personal injury lawyer like the top Vancouver ICBC injury lawyer team at MacLean Personal Injury will advise, for example, that you’re supposed to act in good faith and use reasonable judgment when selecting a doctor or treatment for your injuries.

You’re supposed to seek alternative employment.

If you choose not to have surgery against your doctor’s recommendations (no one can force your consent to a surgery), you could lose recovery for the harms that could have been avoided or significantly lessened by the surgery or other treatment, if a reasonable person would have chosen to undergo the procedure in similar circumstances. Meet with our top Vancouver ICBC injury lawyer  team to chart a path to success.

See  A Doctor Then a Top Vancouver ICBC Injury Lawyer

You’re supposed to see a doctor in a prompt or timely manner for injuries that a reasonable person would consider to require medical care.

Spencer MacLean, MacLean Law

Spencer MacLean, ICBC personal injury lawyer 604-602-9000

You’re supposed not to delay seeking treatment, if a reasonable person would have deemed the injury to be sufficiently serious.

You’re supposed to follow your doctor’s advice, including losing weight, changing diet, returning for follow-ups where a continuing condition or further pain is involved.

Of course, if you can’t continue in your usual line of work or trade, you can’t just “sit on the couch” and do nothing while watching your losses grow and anticipating a big payout. If alternative work is available, or the same work with reasonable accommodations that your employer may (and sometimes legally must) offer, you’re supposed to make an effort to obtain such work.

Injured Victim Wins Over ICBC

The “mitigation of damages” rule, however, has its limitations as the defense bar discovered this past January. The case was Pololos v. Cinnamon-Lopez, 2016 BCSC 81, a 48-year-old suffered a motor vehicle accident in 2008. Liability for the multi-vehicle rear-end collision was admitted. The plaintiff lost consciousness briefly and suffered soft-tissue injuries to his neck, back, shoulder and elbow. He currently suffered from chronic pain, a sleep disorder, anxiety, and depression. He had received a facet-block injection to abate his pain as well as physiotherapy, chiropractic treatments, massage therapy, and acupuncture. He had not returned to his occupation as a handyman, believing that he was extremely incapacitated by his injuries. The experts agreed the plaintiff’s perception of his disability limited his activities and employability.

MacLean Law's top Vancouver ICBC Injury lawyer team

MacLean Law’s top Vancouver ICBC injury lawyer team can be reached at 604-602-9000

The defendant argued that the plaintiff has failed to mitigate his losses in two respects. The first was in not following various treatment recommendations that have been made to him. The second was in not returning to some form of work when the objective evidence, or most of it, suggested he was capable of some form of work.

Judge Rejects ICBC Defence Argument

Mr. Justice P.G. Voith disagreed, first setting forth certain mitigation principles followed in British Columbia:

 

 

95     In Chiu v. Chiu, 2002 BCCA 618 at para. 57, the Court said:

  • 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.

96     The defendant argues primarily that various experts, including Dr. Adrian in July 2011, Ms. Barr in November 2012, Mr. Carlin in October 2012, and Dr. Joy in December 2012, all recommended that Mr. Pololos attend a multi-disciplinary pain programme. These various experts, or some of them, also recommended cognitive behavioural therapy and vocational counselling.

97     I do not consider that the defendant has satisfied the onus that rests with him to establish that Mr. Pololos failed to mitigate his losses. This is so in several ways.

98     First, this is not a case where the plaintiff was indifferent to or cavalier about the treatment recommendations that have been made to him. Instead, my earlier description of the plaintiff’s efforts to find relief or help in some form from various sources reveals an unusual and, perhaps, even an excessive focus on his recovery.

99     Mr. Pololos testified that he could not afford to attend a pain-management clinic and that he had sought, without success, to get funding through his former counsel. Mr. Pololos did, thereafter, in November 2014, attend a ChangePain clinic. Between February and July 2015, he also attended a cardiac rehabilitation programme, consisting of 25 sessions, at the Vancouver General Hospital that also addressed issues of stress, medication, nutrition, and exercise.

100     Second, it is not clear that the defendant has established, as he is required to, that participation in a pain-management clinic would have appreciably altered or improved Mr. Pololos’s recovery. For example, Dr. Joy did opine that he would expect a 20-30% improvement on the part of the plaintiff following his attendance at a pain clinic. Dr. Hirsch, however, was considerably more skeptical about the benefits of such multi-disciplinary pain clinics. He considered that individual cognitive behavioural therapy, in combination with exercise, was far more likely to assist Mr. Pololos.

101     The second aspect of the defendant’s assertion that the plaintiff failed to mitigate his losses pertains to his failure to return to work.

102     This aspect of the defendant’s submission argues that the plaintiff, by limiting himself at home and by withdrawing from the workforce, “is the cause of his own misfortune”. The defendant argues that the plaintiff’s false perception of his disability, with the attendant or consequential financial stress and isolation, are the true sources of the plaintiff’s many difficulties. The defendant further argues that it is the plaintiff’s “false assessment of his abilities” that is the cause of his income loss and likely his mental deterioration.

103     Aspects of this submission are accurate. Several experts agree that the plaintiff’s re-entry into the workforce, in some capacity, would likely benefit him. He would improve his self-image or self-esteem, abate his isolation, and improve his financial circumstances.

104     Nevertheless, the submission presupposes that the plaintiff’s false or exaggerated perceptions of disability are within his control or of his making. For the reasons I have expressed, I do not accept that this is so. Instead, the plaintiff’s inherent makeup, in combination with his various physical and psychological injuries that were caused by the Accident, have created his present condition.

Victim Had No Idea of Mitigation After Accident

Fascinatingly, the Pololos court saw through the mitigation defense and realized that the accident itself had fundamentally transformed the plaintiff, and that self-perception was one of the circumstances to be taken into account in evaluating how a “reasonable person” would have been expected to behave. Defenses to liability and damages have limits. Good personal injury lawyers make it their business to be up-to-date on the often-shifting landscape of defense tactics – and their limits – to protect your case and to make sure you are fairly compensated for your losses.



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