Claimant’s award reduced by $13,500 because she failed to attend a doctor-recommended exercise program

Ms. Nijar was injured in two car accidents two years apart. Neither of them were her fault. She suffered from headaches & neck & back pain from both her accidents which had not resolved at the time of her trial.

ICBC’s lawyer:

  • used Ms. N’s doctor’s records to show that he had told her a few times to go to the gym or to a rehab program to strengthen her back muscles,
  • argued that she did not follow his advice & thus did not take all reasonable steps to mitigate (minimize) her damages and
  • had her doctor agree in cross-examination that if she had done some weight training she would have had less back pain.

Madam Justice Baker decided this case on March 30, 2016. She accepted the opinion of Ms. N’s doctor (reinforced by two medical specialists’ reports) that Ms. N’s soft tissue injuries were life-altering and that her symptoms were continually present, even during trial.

The judge awarded $90,000 for her pain & suffering. She then reduced this by $13,500 (15%) because she agreed with ICBC’s lawyer’s argument that Ms. N had failed to mitigate her injuries and that she would have had fewer problems if she had exercised as recommended.

In summary, Ms. N left $13,500 on the table because she did not follow her doctor’s advice and participate in an exercise program. Our courts, and therefore ICBC, expect that injured people take all reasonable steps to mitigate (minimize or reduce) their damages.

If an injured person who was not at fault obtains a doctor’s note recommending exercise therapy and gives it to ICBC it is likely that ICBC will agree to pay the full cost of a kinesiologist to work one on one and teach him or her exercises. This is one type of treatment that ICBC is generally good about paying in full.

See Nijjar v. Hill, 2016 BCSC 546