Failure to mitigate – lack of funds and exhaustion

In reading these recent trial decisions, there are arguments that jump out at me that I need to write about. 

Today’s article is on the topic of “mitigation”. 

A Plaintiff, who was injured as a result of a motor vehicle collision was attending an “ICBC funded program” with a known national treatment provider.  The Plaintiff states that he stopped attending treatment as “I.C.B.C. stopped funding the program and he could not afford to pay for it himself.” 

The Plaintiff had been off work for two years post collision before resuming work, suffering with chronic pain.  He states he would have benefited from a supervised program but he did not have the resources to pay for treatment, a fact that we see raised often in personal injury litigation, and further, he was exhausted after returning to work.

The Defendant raises an argument of failure to mitigate and states that the Plaintiff acted “unreasonably in failing to continue to exercise following his completion of the LifeMark program.” 

The medical evidence from the Physiatrist states the following:

“There is no cure for chronic pain, and the goal of treatment is for pain relief and improvement/maintenance of function. Any treatment will only provide some temporary relief of his symptoms before the pain gradually recurs. Mr. Basra is likely at increased susceptibility to additional injury or repetitive strain by way of subsequent motor vehicle accident, falls or with increasing physical demands.”

The expert further states:

“ light of Mr. Basra’s current level of deconditioning, he should focus on lower impact physical activities such as swimming, cycling, brisk walking or using an elliptical trainer, rather than jogging. He recommended that Mr. Basra revisit an active rehabilitation program and then transition to an independent exercise program with access to a fitness centre, with annual visits with a kinesiologist to ensure adherence with ongoing self-directed exercise. He also recommended that Mr. Basra engage in low-impact cardiovascular physical activity on a daily basis. In his opinion, passive treatments such as massage therapy, physiotherapy and acupuncture/acupressure should be used on an as-needed basis during times of flare-ups.”

The defence expert:  “recommended that Mr. Basra be more active and that he perform abdominal and core strengthening exercises on a daily basis. He expressed the view that Mr. Basra’s low back symptoms could be significantly improved if he maintained core strength and good physical fitness, and that there was “no contra indication to activity”.

The Plaintiff in this case was deemed credible.

The Court’s conclusion: 

“I conclude that as a result of the injuries he sustained in the accident, Mr. Basra suffered pain and a loss of enjoyment of life, which will likely continue to some extent into the foreseeable future, and from which he is unlikely to ever fully recover.”

The Court’s conclusion on the argument of mitigation:

“I cannot find that he acted unreasonably in not exercising regularly.  The defendants have not established a failure to mitigate.”  The Plaintiff was successful in an award of $426,187.

The referenced decision is Basra v. Masood, 2019 BCSC 2156.

A referenced decision in this case: 

Forghani-Esfahani v. Lester, 2019 BCSC 332 “at paras. 57-69, Justice Verhoeven analyzed the legal framework for assessing an alleged failure to mitigate. I agree with and adopt that analysis. To establish a failure to mitigate, the onus is on the defendants to prove the plaintiff could have avoided all or a portion of his loss. In a personal injury case in which the plaintiff has not pursued a medical recommendation, the defendants must prove, on a balance of probabilities, that the plaintiff acted unreasonably in eschewing the recommended treatment. Having done that, the defendants must establish a real and substantial possibility that some part of the losses could have been avoided had the treatment been undertaken. If that is established, the court will assess the degree of probability that the loss or some part thereof would have been avoided, and assess damages accordingly.”

The Defendant’s arguments on mitigation:

  • Basra acted unreasonably in failing to continue to exercise following his completion of the LifeMark program and his return to work
  • his losses would have been reduced had he done so
  • damages under all heads should be reduced by 20% to the date of trial
  • thereafter by 30% to reflect his failure to mitigate.

The Court states:

 [122]     There is no doubt that Mr. Basra experienced significant improvement in his symptoms because of his participation in the LifeMark program in late 2015 and early 2016. He acknowledged that his condition improved so much that he was able to return to work. It is also beyond dispute that Mr. Basra was advised to continue to exercise, and that maintenance of core strength and overall conditioning would likely lessen his symptoms, particularly at work.

[123]     The real issue is whether the defendants have established, on a balance of probabilities, that Mr. Basra acted unreasonably in failing to continue with self-directed exercise, after completing the LifeMark program. I find they have not.

[124]     The LifeMark program was funded by I.C.B.C. Mr. Basra testified that he would have liked to continue with a supervised program, but that I.C.B.C. stopped funding the program and he could not afford to pay for it himself. The evidence established that Mr. Basra’s finances were very limited at the material time. I accept that he did not have the financial ability to fund a supervised program.

[125]     Mr. Basra also testified that he was exhausted after work and could not bring himself to exercise regularly on his own. He had been off work for two years because of the injuries he sustained in the accident. I accept that he found returning to a physical job after two years, while still symptomatic and facing functional limitations as a result, to be exhausting. In the circumstances, I cannot find that he acted unreasonably in not exercising regularly. That is not to say that exercise is not likely to improve his functionality and his ability to tolerate the physical demands of his job. As indicated by the award for the cost on an ongoing gym membership, I accept that it is likely to do that. However, that does not mean that Mr. Basra’s inability to drag himself to the gym or the pool, or to engage in a strenuous exercise routine at home, after putting in a day of physical labour during which he suffered from low back pain, was unreasonable.

[126]     The defendants have not established a failure to mitigate.

The take-away from this decision is to tell your client’s story.  Itemize all the reasons why the client did not attend treatment because as we see in this case, the fact that the client did not attend treatment does not always suggest that a failure to mitigate argument will succeed. 

All of the client’s challenges and barriers in attending treatment as noted in this case should be reflected in existing claims.  Do not shy away from your client’s story.  Tell the story with detail and embrace all the challenges and difficulties that exist.

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