Failure to Mitigate

Under law, you have a duty to mitigate your damages, which means that you must take all reasonable steps to reduce the losses that you may suffer

An argument in many ICBC claims is that the Plaintiff failed to mitigate his/her damages by returning to work earlier, or by carrying out a certain treatment recommendation which probably would have made the injuries better sooner.

Under law, you have a duty to mitigate your damages, which means that you must take all reasonable steps to reduce the losses that you may suffer because of your injuries.  ICBC has the burden of proof to establish that you failed to mitigate your damages. This means that they will have to prove this issue in Court.

In terms of your wage loss claim, the best thing to do is to have your doctor closely monitor your progress and to support the fact that you are unable to return to work.  In the face of sound medical opinions on your inability to return to work, ICBC will be hard-pressed to argue that there was a failure to mitigate on your part.

If your doctor recommends you try returning to your original job or another form of employment you need to try working.  If you attempt a return to work program and it turns out you are unable to continue at work, make sure that your doctor supports you going off work.  The fact that you attempted to return to work and it failed will only benefit your claim because ICBC will have a hard time arguing that there was a failure to mitigate.  Of course, if you can soldier on and work then that is helpful to you financially because you are back at work.  Therefore, it is a win-win situation.

In terms of following medical treatment advice, the simple answer is that you should follow all recommendations by your doctors and therapists regardless of whether you believe they are going to be of any value.  If a doctor recommends a certain therapy program, you should go to that program. If you are unable to afford the program, you should send a self-serving letter to ICBC asking ICBC to fund the program.  If ICBC denies funding, ICBC cannot turn around later and argue you should have gone to the program. This is because you will be able to make a strong argument that you were unable to go to the program because of lack of money.

Overall, expect ICBC to argue at trial a failure to mitigate whenever there is a lengthy time off work or lack of recommended treatment. Don’t fall into the trap of giving them evidence that bolsters that defense.