Mr. Martin suffered neck & back injuries from his mva in December, 2012. He had gained 20 – 25 pounds in 2012 prior to his accident. Between April, 2013 & May, 2015 he attended a physiotherapy exercise program to strengthen his back & abdominal core muscles.
ICBC argued at trial that:
- Had Mr. M made a reasonable & prompt effort to lose weight and keep that weight off his condition would have improved faster and,
- therefore all of Mr. M’s award should be reduced, but only by 10% considering that Mr. M made “efforts to improve his core strength for a period of time”.
On July 25, 2016, Mr. Justice Jenkins decided that:
- Mr. M was, in fact, “diligent in pursuing treatment for his injuries”,
- he had followed his doctors’ advice quite closely,
- he was heavy when injured in 2012 but he did lose about 25 pounds during 2013 & 2014,
- Mr. M did not recover as quickly or make as full a recovery as many others do,
- but he did act reasonably in trying to do so.
Therefore his damages were not reduced based on a failure to mitigate.
The law says that claimants have an obligation to take all reasonable measures to “mitigate” (reduce) their damages.
However, before a judge will reduce an award for so-called “failure to mitigate” ICBC must prove that the claimant:
- acted unreasonably in refusing recommended treatment and
- would have experienced less damages (meaning a speedier and/or more complete recovery) had he acted reasonably.
See Martin v. Dardengo 2016 BCSC 1371