Weight loss and personal injury claims: A failure to lose weight is not necessarily a failure to mitigate.

As discussed in previous articles, failing to pursue proper medical treatment can not only affect your health but may have a severely negative effect on your personal injury claim. Lawyers hired by ICBC commonly argue that an injured party has failed to take necessary steps to mitigate their losses and, as a result, their award should be significantly reduced. Indeed, injured parties do have a duty to mitigate their losses, which typically means taking reasonable steps to reduce their losses. The courts have recently elucidated the test for a failure to mitigate, which has 3 components:

  1.       that the injured party has failed to take the recommended treatment;
  2.       that by following the recommended treatment they could have overcome the problems and avoided the loss; and
  3.       that the refusal to take that treatment was unreasonable.

In this recent Supreme Court of British Columbia case, the lawyer for the defendant argued that the plaintiff had failed to mitigate their losses by failing to lose weight, as recommended by medical experts:


The judge ruled that the failure to lose weight alone did not amount to a failure to mitigate and the plaintiff had indeed taken appropriate steps to mitigate their losses. Despite not successfully losing weight, the judge found that the plaintiff had been a “very compliant patient who was willing to try any form of suggested treatment” and the plaintiff had indeed taken appropriate steps to mitigate their losses by pursuing other forms of treatment. The judge also ruled that the defence had not established a definite link between weight loss and improvement in function or reduction in pain. Although some medical experts found that it was “possible” that weight loss could reduce the plaintiff’s pain, they did not say it was”probable“. As a result, the defence lawyer’s argument failed.

Also, of importance here is that it was confirmed that the defence has the burden of proving that an injured party has failed to mitigate their losses. In other words, if ICBC wants to rely on an injured party failing to mitigate their losses, it is up to ICBC to prove it. Despite this, an injured party should never neglect their own treatment. I always recommend that every client of mine discusses an effective treatment plan with their doctor. Typically this will consist of treatment with registered and experienced treatment providers, such as: physiotherapists, registered massage therapists, chiropractors, acupuncturists, and kinesiologists.


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