ICBC’s argument – reduce damages because of failure to lose weight after mva – rejected

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