To mitigate means to reduce or alleviate damages or harm. In the legal context, the mitigation principle says that there should be no recovery for damages that the plaintiff could reasonably have avoided. So, a plaintiff has an obligation to take reasonable steps to try and minimize the damages or losses that result from the defendant’s negligence. Failure to do so may lead to a reduction in the award of damages.
The Failure to Mitigate Defense
In ICBC cases, the two most common circumstances where the failure to mitigate defense gets raised are when:
- The plaintiff does not follow medical advice regarding treatment or rehabilitation; and,
- The Plaintiff refuses to return to work or find alternate employment after sufficient recovery from the injury.
ICBC cannot force you to undergo medical treatment. However, if you don’t do what has been recommended, ICBC will argue that you failed to mitigate your damages and seek to reduce your compensation accordingly. The amount of the reduction is supposed to reflect what would have been the outcome if you had followed the medical treatment. This issue comes up in cases where a plaintiff does not attend recommended physiotherapy, counseling, exercise rehabilitation, and even, in some cases, injections or a surgical procedure. To succeed with this defense, ICBC needs medical opinion evidence that the plaintiff would have benefitted from the proposed treatment. Also, the plaintiff is not required to partake in treatment that may be risky or potentially harmful. If there is a difference in medical opinion about treatment alternatives, the plaintiff is usually free to choose the type of treatment (as opposed to doing nothing).
When ICBC is successful with the mitigation defense, the amount of the deduction will vary, based on the likely result had the treatment been followed, but the typical amount is in the range of 10% – 40%.
With respect to income loss claims, ICBC will frequently argue that the plaintiff could have and should have returned to the job sooner, or looked for alternate work if the job was no longer suitable or available. To succeed, ICBC usually needs some opinion evidence that the plaintiff was medically fit to return to work sooner than he/she did, although in some cases it may be obvious enough that expert opinion is not required.
Generally, you do not have the luxury of waiting until you are 100% recovered, as there is a reasonable expectation that you will return to the job when you are sufficiently recovered so as not to be at risk of worsening your injuries. Often, this means returning on a part-time or graduated basis, and/or lighter duties, and slowly building up to full hours and duties. This is, of course, subject to the employer’s willingness to accommodate a reduced work schedule.
If you have an ICBC injury claim and questions about your duty to mitigate, give us a call. We are very familiar with this issue and have successfully opposed ICBC in countless cases when they have tried to raise this defense. We can help you, too.
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