Hergott: Take steps to get better after an accident

Is it fair that a victim’s efforts to get better be scrutinized? I think it’s a sensible law, but it can lead to injustice.

Paul Hergott

Find out what you can do to get better, and do it.

It’s one of my key pieces of legal advice for those consulting with me after a crash.

Legal advice? Isn’t that just common sense?

It actually takes me a bit of time to fully explain that advice.

It might not be good enough for you to focus solely on your recovery.

Every step you take, or don’t take, is going to be scrutinized at some point.

Why? There is a law that actually requires you to take all reasonable steps to getbetter.

It is a law that leads to the distasteful notion of blaming the victim.

Someone has shown such disregard for the safety of others that they somehow failed to notice traffic ahead of them stopping, and they crash into the back of a stopped vehicle.

Is it fair that their victim’s efforts to get better be scrutinized?

I think it’s a sensible law, but it can lead to injustice.

The victim’s entitlement to fair, financial compensation for their injuries and losses can be reduced if an ICBC defence lawyer, with 20/20 hindsight, can show that the victim did not take all reasonable steps to get better.

Sure, you did this, this, this and this, but you didn’t do enough.

A recent case of our British Columbia Supreme Court, Harmati v. Williams, 2016BCSC 2199, has clarified a critical aspect of the law, which reduces the possibility of injustice.

There must be evidence that had you done more, or done things differently, it would have made a difference in your recovery.

Madam Justice Choi, at paragraph 126 of her decision, concludes the following with regard to the defence attempt to show that the plaintiff failed to take all reasonable steps to get better (failed to mitigate her losses): “Because of this lack of evidence about the nature of the losses which could have been mitigated, and the potential success of such mitigation efforts, I do not find that the Defendants have proven that the Plaintiff has failed her duty to mitigate….”

While the 20/20 hindsight view of this lady’s attempts to get better showed that she had fallen short, she still recovered 100 per cent compensation for her losses, without reduction, because it wasn’t established that she would have had a better outcome had she done things differently.

It’s better not to get to that point, though.

My preference is to help injured victims navigate through their care, knowing that their care decisions will be scrutinized.

It is best to avoid the “failure to mitigate” argument from coming up in the first place.

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