HERGOTT: COVID-19 and ICBC

Paul Hergott is a personal injury lawyer based in West Kelowna

If COVID-19 prevents you from getting the care you need, can ICBC use that as an excuse to not fully compensate you for your losses?

The basis for their excuse would be your legal obligation to act reasonably to minimize (“mitigate”) your losses.

Quoting from Hauk v. Shatzko, 2020 BDSC 344: “A plaintiff in a personal injury action has a positive duty to take reasonable steps to limit their loss”.

And Gajoum v. Keenan, 2020 BCSC 360: “A plaintiff has an obligation to take all reasonable measures to reduce his damages, including undergoing treatment to alleviate or cure injuries”.

If someone stabs you in the wrist you must put pressure on the laceration to stop the bleeding. If an idiot waves their blood-spurting arm around yelling “I’m going to sue you for all your worth”, they will not be compensated for losses that would have been avoided (“mitigated”) had they acted reasonably and stopped the bleeding.

It’s not so obvious how to “stop the bleeding” when it comes to car crash injuries. How do you best heal from stretched and torn connective tissues like muscles and ligaments?

Your obligation is to find that out! And to do those things.

Fail to “mitigate your losses” in that way and you will not be compensated for losses that you could reasonably have avoided.

Internet research is not enough. You must consult with a doctor.

What if your doctor has referred you to physiotherapy, massage and chiropractic care, but COVID-19 has shut down all those caregivers!

It’s not your fault that care is not available. But it’s not ICBC’s either.

Do you have to join the class action lawsuit against China?

No. You will not be penalized for a lack of available care.

An analogous scenario is if you lived in a remote community with limited available care. This scenario came up in the case of Hodgson v. Saeed, 2015 BCSC 147.

Quoting from paragraph 98 of that decision: “The plaintiff has a duty to mitigate and in this case there was some issue as to whether the plaintiff should have been seeking more frequent medical attention. I find however that given the remote locations and the scarcity of doctors at the remote locations where the plaintiff was working, there is no fault on the plaintiff for not seeing a physician more regularly”.

But don’t for a moment think that your obligation to “mitigate” your losses ends with closed down therapy clinics.

I encourage you to look at things from a different perspective. It’s not about protecting or maximizing your ICBC claim. It’s about getting better as fully and quickly as possible.

Do whatever you can to achieve that goal and the ICBC claim will look after itself.

Do a little poking around and you will find that physiotherapists are providing video conferencing consultations. A video conferenced assessment is far from ideal, but it a heck of a lot better than nothing.

A physiotherapist (or other hands on caregiver) cannot put their hands on you remotely, but they can learn a lot about what is going on through interviewing and observation and can offer very helpful guidance.

Clinical counsellors and psychologists are offering video conferencing consultations as well. As are kinesiologists.

E-mail me if you are providing, or having difficulty finding, video conferencing care. I am happy to connect you.

And your doctor is likely to have valuable recommendations for what you can do on your own to achieve as full a recovery as quickly as possible, absent hands on caregivers.

A lack of available hands-on caregivers will not be held against you. But a lack of diligent effort to find and follow alternatives will not only compromise your recovery, it will be used by ICBC to avoid fully compensating you for your losses.

Missed last week’s column?

HERGOTT: COVID-19 and legal issues

About Paul Hergott, Personal Injury Lawyer:

Paul began practicing law in 1995 in a general litigation practice. Of the various areas of litigation, he became most drawn to and passionate about pursuing fair compensation for personal injury victims, which has gradually became his exclusive area of practice. Paul’s practice is restricted to acting only for the injured victim, never for ICBC nor for other insurance companies.

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