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Active Rehabilitation Following a Motor Vehicle Accident: Your Duty to Mitigate

If you've been injured in a motor vehicle accident, bicycle accident or pedestrian accident, your doctor has likely advised you to attend physical therapy for rehabilitation of your injuries. However, the competing demands of work, school and family responsibilities can make it difficult to find time to attend physiotherapy, massage therapy and/or chiropractic appointments.  If you've suffered a back injury, neck injury or other soft tissue injury, you may also be feeling stiff, sore and fatigued - the last thing you want to do is head to the gym for a strength and stretching session. However, a recent decision of the BC Supreme Court demonstrates the importance of following your doctor's advice when it comes to post-accident physical therapy. 

The decision of the B.C. Supreme Court in Cummings v. Hitt, 2015 BCSC 530 highlights the importance of taking reasonable steps to minimize your accident-related damages (also called "mitigation") by following the rehabilitation regimen recommended by your doctor.

Ms. Cummings was a 16 year old driver who t-boned a left-turning vehicle in an intersection. The other driver admitted legal responsibility for the accident. The Court was left to consider how much compensation to award to the plaintiff for her accident-related injuries.

Ms. Cumming suffered neck, shoulder, knee and hip injuries in the accident. She attended massage therapy and physiotherapy after the accident, and even participated in a structured active rehabilitation program at a local gym. As a result, she experienced an improvement of her injury symptoms and pain. However, she soon began to find exercising "unpleasant and painful" and stopped going to the gym. In the years following the accident her physical conditioning declined and her pain level increased. She began to focus on her pain and restrict her activities. Despite the recommendations of her own family doctor a physiatrist engaged to give expert evidence in the case, she refused to return to an exercise program and her symptoms worsened.

At trial, the Court considered whether Ms. Cummings' financial award for pain and suffering should be reduced to account for the fact that she had failed to follow the active rehabilitation program recommended by her doctors. The Court noted:

A defendant will not be held liable for loss and damages the plaintiff could have reasonably avoided. Accordingly, a plaintiff has a duty to mitigate by taking all reasonable measures to reduce loss and damages caused by the defendant's negligence. This duty includes an obligation to undertake reasonably available treatment that would assist in alleviating or curing his or her related injuries.

The Court also observed that while the law does not impose upon a plaintiff a standard of "perfection in the pursuit of rehabilitation" it does require the plaintiff to make "contextually reasonable and sincere efforts to limit his or her damages and loss".

The Court found that while Ms. Cummings was not obliged to undertake each and every treatment option recommended by the experts, her failure to participate in an ongoing active exercise program was not reasonable. The experts agreed that Ms. Cumming could have, and should have, exercised regularly, despite her discomfort. Had she continued with her active rehabilitation program, she would have reduced her loss and damages. In the result, the Court assessed Ms. Cummings' damages for pain and suffering at $65,000.00. However, it reduced her award by 10% to account for her failure to mitigate her damages by engaging in an active rehabilitation program.

Following a doctor-recommended program of active rehabilitation can be an essential part of your recovery following a motor vehicle accident, bicycle accident or pedestrian accident. It can also be an essential part of your claim for compensation; failure to follow your doctor's advice could result in a reduction of your financial compensation. So, if your doctor has recommended it, get up and get moving - you'll be glad you did. 

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