Another unsuccessful attempt by defence in a recent decision referenced as Mladjo v. Eteridge, 2019 BCSC 950 to argue that the Plaintiff has failed to mitigate her damages. This is a defence tactic that we see in most cases, and one that should be considered in the management of your client’s case.
Under the new BC legislation, there is a higher duty placed on a Plaintiff’s duty to mitigate based on Section 101 (2) enumerated below:
Section 101 (2) of the Insurance (Vehicle) Act, [R.S.B.C. 1996] Chapter 231 under “serious impairment”
- An injury is deemed to be minor if the Claimant fails to seek a diagnosis or comply with treatment without reasonable excuse in accordance with a diagnostic and treatment protocol prescribed for the injury, even if the injury results in a serious impairment or permanent serious disfigurement or is deemed to be outside of the definition of a minor injury.
The exception:
- If the Claimant can establish that even if he/she sought a diagnosis and complied with the treatment, the same result would have occurred, than in this instance, the injury will not be deemed minor.
Heightened Management
There must be, in my view, a “front-loading” as it relates to the management of your client’s case in the first year post collision. Some tips to be mindful of:
- Familiarize yourself with the diagnosis & treatment plan of the Plaintiff early in the case
- Review of the CL489 GP Standard Medical Report
- Mitigation of damages is crucially important
- Even where there is an objective injury, the treatment protocol should be followed due to risk of “minor injury” interpretation
- Be aware that the Courts are bound by the definition noted in the legislation
- Clients who are going away on vacation and not attending treatment will be subject to risk of “minor injury” interpretation
- Challenges exist for financial barriers / these barriers must be considered with solutions offered
- Relationship with GP is very important / due to diagnosis
- Clients not attending GP regularly will be exposed to risk of “minor injury” interpretation
- Seeking a full medical history, which includes pre-existing injuries early on in the litigation is very important – as this will go to credibility
- Asking the client the right questions which will trigger the information you need to know
Eg:
-
- prior collisions that the Plaintiff may have been involved in
- all medical treatments (related or un-related)
- psychological factors (has the Plaintiff seen a counselor, psychologist or psychiatrist, whether pre or post collision)
- social factors (any personal challenges, eg: marriage breakdown)
- loss of job or issues in the workplace, or
- death in the family
- etc
Let’s turn to Mladjo and look at the facts, arguments and the conclusion as it relates to failure to mitigate:
It is well known that a plaintiff has a duty to take all reasonable steps to mitigate their damages, which includes attending recommended treatment to ameliorate their injuries. Danicek v. Alexander Holburn Beaudin & Lang, 2010 BCSC 1111, at para. 234.
[79] The duty to mitigate is a positive duty but if a defendant’s position is that the plaintiff could reasonably have avoided some part of the loss, the defendant bears the onus of proof on that issue: Graham v. Rogers, 2001 BCCA 432, at para. 35.
[80] A defendant who wishes to establish that a plaintiff has failed to mitigate her loss must prove two things:
1) that the plaintiff acted unreasonably in eschewing the recommended treatment; and
2) the extent, if any, to which the plaintiff’s damages would have been reduced had she acted reasonably: Chiu v. Chiu, 2002 BCCA 618 [Chiu], at para. 57.
[81] The defendant argues that the plaintiff failed to mitigate her loss for the following reasons:
1) The plaintiff was overweight before the Accident and she did not lose weight, as recommended by a number of clinicians, until the second year after the Accident;
2) The plaintiff did not do various active therapies such as active rehabilitation, swimming and exercise in the first two years post-Accident;
3) The plaintiff stopped doing physiotherapy after April 2017;
4) After completing her program of active rehabilitation at Nova Active Rehab (“Nova”), the plaintiff was told to do more active rehabilitation and she did not; and
5) In July 2018 Dr. Jung’s report recommended that the plaintiff do more physical activity and she did not.
[82] I do not agree with the way in which counsel for the defendant has characterized the evidence on this issue. Ms. Mladjo testified at length about the therapies she has undertaken and the efforts she has made to recover from her injuries.
[83] With respect to her weight, the plaintiff has made changes to her diet and exercise routine and those changes have resulted in significant weight loss as evidenced by the more than seven kilograms she appears to have lost between March 2015 and Dr. Jung’s examination of her in April 2018.
[84] With respect to the recommended therapies, Ms. Mladjo testified that financial circumstances precluded her from undertaking all recommended therapies. I find that the choices she made, particularly to focus her financial resources on paying for massage which provides her with immediate pain relief, were reasonable in the circumstances. It is not correct, as the defendant has stated, that Ms. Mladjo has declined active therapies in favour of passive ones. She completed her course of active rehabilitation with Nova and shortly thereafter, resumed classes at Pro Fit Boot Camp on a modified routine. She made the choice to invest more of her limited resources in the therapies that provided her the most pain relief and I find this was reasonable in the circumstances.
[85] I therefore find that the defendant has failed to satisfy the onus of proof on the first part of the test set out in Chiu. The defendant has not demonstrated that the plaintiff acted unreasonably in eschewing the recommended treatment. Indeed I find that she did not eschew the recommended treatment. To the extent that some treatments were not done right away, there was a financial impediment that made Ms. Mladjo’s decision to defer some treatment entirely reasonable.
[86] I therefore find that there is no basis to reduce the damages payable to the plaintiff on the basis of failure to mitigate and I decline to do so.
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