The goodfirm ICBC lawyers want to draw attention to a recent BC Supreme court case where a plaintiff’s failure to undergo a doctor recommended treatment program resulted in a reduction of the plaintiff’s award. In Lally v. He, 2016 BCSC 2187, a plaintiff’s award of damages was reduced for failing to attend a rehab program that would have helped with her post accident injuries. .
In Lally, Ms. L was injured when her car was struck by another car attempting to make a right turn on a red light. The other driver was at fault for the accident and Ms. L suffered significant pain in her back and shoulder as a result of the accident. At trial, she claimed for more than $650,000 for her injuries.
Her doctor had recommended that she pursue an active rehabilitation program. She had attended a single session but had not but diligent in regularly doing her exercises and participating in additional sessions. The ICBC defendants took the position that the plaintiff’s award of damages should be reduced due to her failure to participate in the program. Ms. L had testified that she found it difficult to schedule sessions around her work but the court found that explanation was not reasonable.
In Chiu v. Chiu, 2002 BCCA 618, the court set out the test for establishing a plaintiff’s failure to mitigate. In order for a defendant to establish that a plaintiff has failed to mitigate by not pursuing a recommended treatment, the defendant must prove, on the balance of probabilities, that the plaintiff acted unreasonably in not pursuing the treatment and also the extent to which the plaintiff’s damages would have been reduced had the plaintiff undergone the treatment. Applying this test, Madam Justice Warren found that Ms. L would have had more improvement in her recovery had she fully participated in an active rehab program. As a result, she reduced Ms. L’s award by 10%.
In all personal injury cases, it is important to follow your doctor’s advice and recommended treatment. Not doing so leads to the risk that your eventual award of damages may be reduced.
