How Important Is It To Follow Your Doctor's Advice When You Are Claiming Damages From ICBC For Injuries Suffered In A Car Accident?

When you are injured in a car accident and claim damages from ICBC, you are under an obligation to "mitigate" your damages, that is, to take reasonable steps to minimize your loss.

In the recent case of Maltese v. Pratap, 2014 BCSC 18, several medical professionals recommended that the plaintiff undertake a program of physical rehabilitation and fitness with a personal trainer, but the plaintiff did not do so. The judge found that there would have been a significant improvement in the plaintiff's condition had he undergone the recommended treatment. The plaintiff's pain and suffering award was reduced by 30% as a result. The Court stated at paragraph 52, "When doctors recommend treatment and the advice is not followed, the defendant [ICBC] must prove: first, that the plaintiff acted unreasonably in not taking the treatment, and second, the extent to which the plaintiff's damages would have been reduced." The Court went on at paragraph 55: "The facts of this case represent a textbook example of a failure to mitigate. There is a consensus among the professionals who assessed and treated the plaintiff that [he] needed to undertake a program of physical rehabilitation and fitness with a kinesiologist or personal trainer. Their recommendations are remarkably similar. [The plaintiff] has chosen to ignore them."

Reductions for failure to mitigate may be more or less than 30%. In the case of Latuszek v. Bel-Air Taxi (1992) Limited, 2009 BCSC 798, the plaintiff's award was reduced by 40% when the plaintiff failed to comply with an exercise regime. At paragraph 85, the Court stated: "There is a duty at law to take reasonable steps to minimize your loss, particularly where, as here, conservative treatments have been recommended. ... [The doctor] recommended exercises in the pool and gym and brisk walking. [The plaintiff] says he swam once in a while, but he did not go to the gym or do brisk walking. ... [The plaintiff] does very little regular exercise of any kind, except once or twice a week. He did not try yoga, massage therapy, relaxation therapy or the medications as recommended by his psychiatrist. ... [H]e understands that ... exercise, may improve, if not cure, his symptoms. The plaintiff has not prioritized his recovery."

Juries may also apply a reduction to a plaintiff's pain and suffering award, as occurred in Ogilvie (Litigation...