More on Mitigation of Damages in ICBC Injury Claims

I’ve written previously about mitigation of damages in ICBC Injury Claims and reasons for judgment were released today by the BC Supreme Court (Ponipal v. McDonagh) applying this legal principle.

 Mitigation, in general terms, means taking reasonable steps to reduce one’s damages.  In a personal injury lawsuit mitigation usually revolves around taking reasonable steps in following the advice of treating physicians.

In today’s case the Plaintiff was injured in a 2007 intersection crash in Vernon, BC.  The Plaintiff suffered various soft tissue injuries.   In the course of her recovery an exercise and conditioning program was recommended to the Plaintiff.    Mr. Justice Blair found that the Plaintiff ‘unreasonably failed to pursue the program’ and that doing so would have reduced the effect of her injuries.

As a result of this ‘failure to mitigate’ Mr. Justice Blair reduced the Plaintiff’s award for non-pecuniary damages (pain and suffering) of $35,000 by 10%.  The discussion with respect to mitigation of damages was set out at paragraphs 25-29 which I set out below:

[25]            The defence points to Mrs. Ponipal’s omission to embark on a structured exercise and conditioning program as recommended by Drs. Travlos and Reebye as constituting a failure to mitigate the physical difficulties arising from the collision.  The defence submits that this omission by Mrs. Ponipal ought to result in the reduction of her general damages.

[26]            Antoniali v. Massey, 2008 BCSC 1085 outlines a framework which I will follow in this case in determining whether the defendant has established that Mrs. Ponipal failed to mitigate her damages.  The questions are as follows:

1.         whether an exercise and conditioning program under a trainer’s guidance would have reduced or eliminated the effect of the injuries;

2.         whether the reasonable plaintiff in Mrs. Ponipal’s circumstances would have followed such a program;

3.         whether Mrs. Ponipal unreasonably failed to follow such a program; and

4.         the extent to which Mrs. Ponipal’s damages would have been reduced if she had followed such a program.

[27]            I am satisfied from the evidence of Drs. Travlos and Reebye, both being specialists in physical medicine and rehabilitation, that an exercise and conditioning program under a trainer’s guidance would have reduced the effect of Mrs. Ponipal’s injuries.  I am further satisfied that a reasonable individual in Mrs. Ponipal’s circumstances would have undertaken such a program and that she unreasonably failed to pursue the recommended program.  Mrs. Ponipal testified that there were two reasons why she did not embark on an exercise program, the first being that she wanted to know the results of the nerve conduction study suggested by Dr. Travlos before she undertook the exercise program.  She expressed concern that the exercise program might worsen the numbness and tingling in her right arm and hand, negatively affecting her ability to play the piano.  However, there is no evidence that she discussed that concern with Dr. Travlos or any other of her caregivers.  The second reason she stated was the financial burden imposed in hiring a personal trainer.  However, this is not a family devoid of means and Mrs. Ponipal’s husband Garry testified that they would have done that which was necessary to assist his wife’s recovery.

[28]            The extent to which Mrs. Ponipal’s non-pecuniary damages would be reduced as a result of her failure to take the exercise and conditioning program is difficult to assess.  In Antoniali,Preston J. reduced the pre-trial non-pecuniary damages by 15 percent and the post-trial non-pecuniary damages at 50 percent.  In Job v. Van Blankers, 2009 BCSC 230, Ker J. reduced the plaintiff’s non-pecuniary damages by 10 percent to reflect her failure to mitigate her damages.

[29]            I assess Mrs. Ponipal’s failure to mitigate by reducing her non-pecuniary damages by 10 percent.