YOU AND THE LAW® WHAT IS MITIGATION? WHY DOES IT MATTER? In spring, 2012, Mandy (name changed) was hurt in a carHer bank employer knew it had to accommodate her accident through no fault of her own. She suffered smemedical condition and was keen to have her back. But serious injuries, including soft tissue injuries to her neck Mandy felt due to her condition she couldn't go back and spine causing her neck and back pain. He and needed a career change. Her plan was to become a serious injuries were psychological though, including counsellor. This would mean some four to five years of depression, anxiety and chronic pain syndrome,study, and then likely a lower salary than if she returned unresolved at the time of the court hearing years later. to work at the bank and over time progressed to a more The trial court had awarded her compensation for pain and suffering, loss of past earnings and loss of future earning capacity. But then it cut that award in halftT B.C. Court of Appeal agreed with this decision. Here's Mandy had adamantly refused repeated medical seniorevel. She also argued she would likely never be able to work full-time again. The court didn't agree, however recommendations that she should get treatment from You may have heard that there's a "duty to mitigate" your losses or injuries caused by someone else if you're hurt in a car (or other) accident. That duty exists even if the accident was the other sides fault psychiatrist and take anti-depressant medications as advised. Her reluctance stemmed partly from he concern that shed be stigmatized for having mental problems. The court rejected this as a valid excuse in this modern day and age. There was also medical In this situation, you may be entitled to compension evidence that she would benefit from the recommended from the at-fault vehicle driver, owner or their insurer psychiatric treatment and ultimately be able to return to (typically ICBC). The compensation aims to put youfull-time work in the same financial position you would have been in if the accident hadn't happened. But you cant just si idly by and look to the defendant to make you whole financially. You have to take reasonable steps to Because Mandy didn't take reasonable steps to mitigate her losses (e.g., past and future wage losses), the trial court cut her compensation award significantly. The appeal court saw no valid reason to change this. mitigate" to reduce the losses you sustained. That common sense approach is one our courts have long This column provides information only and must not be relied on for legal advice. Please call So if the defence can prove your losses would ve Stephen W.Turner at 250-868-8801 for your free been less if you had taken appropriate action, your no obligation, initial consultation compensation may be reduced by the court. The reasoning is that the defendant shouldn't have to pay for your failure to reduce your losses. Written by Janice and George Mucalo LLB.s with contribution by Stepben W Turne Lauyer Janice Mucalov In Mandy's case, Mandy was employed in a junioris an auard-winning legal wrier "You and the Law" is a managerial position at a bank at the time of the accident. registered trademark. O Janice and George Mucalov STEPHEN TURNER LAW Personal Injury Law ICBC CLAIMS, DON'T GET HURT TWICE LAW Cor Fieaionta 20.868.8801 100 ptogpheinturnceniownia 508 Doyle Ave., Kelowna law@stephenturnerlaw.ca Consultation