In personal injury litigation, defenses to plaintiff injury claims are predictable – causation and failure to mitigate. Rarely does a personal injury trial occur without these two issues being in the forefront of the assessment of damages. In Cassells v. Ladolcetta 2012 BCCA 27 (CanLII) the Court of Appeal recently considered the proper test to be applied in claims of mitigation. In so doing it confirmed the test as established by the Supreme Court of Canada in Janiak v. Ippolito 1985 CanLII 62 (SCC), [1985] 1 S.C.R. 146 remains good law. In applying Janiak, the Court of Appeal confirmed that the test of failure to mitigate is an objective one.

In the case of Cassells, the Court considered the interesting issue of what is novel scientific evidence and also considered whether the trial judge had properly applied the Janiak test in assessing the plaintiff’s mitigation efforts. In Cassels the Plaintiff had delayed following advice to commence a form of drug therapy. The trial judge appears to have taken into consideration subjective factors in assessing the plaintiff’s decision to delay commencement of the drug therapy, holding in part as follows at paragraph 193 of his reasons in J.F.C. v. Ladolcetta, 2009 BCSC 1151:

…In the circumstances of this case, there is no question that based on a pure objective test, the plaintiff ought to have followed his doctors’ advice. Likewise, if that were all that needed to be considered, the correct result again is obvious because in Canada the law does not excuse objectively unreasonable choices, so long as the plaintiff has the requisite capacity to make them…

The trial judge, in analyzing whether the plaintiff had the requisite capacity to make the choice, stated in part as follows at paragraph 196:

However, the case becomes less obvious when accident-induced injuries take away the capacity to make the objectively rational decision. If the plaintiff’s capacity is reduced completely, that is a straightforward case – but less so when the accident-induced injuries have substantially inhibited, though not completely removed the plaintiff’s capacity to think through rationally the risks and benefits of the recommended treatment.

The appellants submitted that the trial judge erred in taking a “modified subjective” approach to determining whether and to what extent a plaintiff has failed to mitigate loss, contending that the failure to mitigate must be assessed on an objective basis.

Although declining to interfere with the award at trial, the Court of Appeal agreed with the appellant that the test for failure to mitigate is objective and is not subjective, modified or otherwise. In confirming that Janiak provides for an objective person test, Lowry J.A. writing for a unanimous bench said as follows:

[26] … I consider that if a plaintiff had the capacity to make the decision about treatment it is said ought to have been made, and the advice was sound, the mitigation question in each instance must be what would be expected of a reasonable person in the circumstances having regard for the plaintiff’s medical condition at the material time and the advice given concerning treatment. If, through no fault of his own, the plaintiff did not have the capacity to make the decision, or the advice was not sound, the question would not arise.

[27] It is not simply a matter of a plaintiff having to follow the advice given in order to mitigate the loss claimed, as the judge appears to suggest at the outset of his legal analysis; rather it is a matter of considering what a reasonable recipient of such advice would be expected do to in the circumstances having regard for the nature of the advice and any explanation of the risks and benefits given.

No new law is established by this recent decision, however it provides a very useful summary and explanation of Janiak and the proper way of applying the test of failure to mitigate. Given the clear and concise wording I expect it will become an oft quoted decision, relied on by counsel arguing both sides of a case.

Practitioners involved in motor vehicle accident claims will be familiar with the approach that the Insurance Corporation of British Columbia takes to payment for massage therapy under the Part 7 regime. ICBC will only pay for a limited number of massage therapy treatments and only during a restricted period of time following a motor vehicle accident. A recent Court of Appeal decision clarified ICBC’s obligation to pay for massage therapy and provides a basis for lawyers representing individuals injured in motor vehicle accidents to force payment of massage therapy beyond ICBC’s restrictions.

In the decision of Raguin v. Insurance Corporation of British Columbia 2011 BCCA 482 (CanLII) , 2011 BCCA 482 Madame Justice Rowles wrote the decision for the unanimous bench. The case concerned a claim by two infant plaintiffs for the cost of massage therapy under part 7. The total amount claimed was $742. ICBC brought an application to dismiss the plaintiff’s claims and the plaintiffs applied for payment of the treatments. At trial an order for payment of the incurred cost of massage therapy was ordered. ICBC appealed that decisions submitting that massage therapy is a discretionary benefit under the Insurance (Vehicle) Regulation, BC Reg 447/83, Part 7 and that the only mandatory benefits are those enumerated in s. 88(1) . The Court of Appeal disagreed with ICBC’ submission, upholding the decision of the trial judge.

The Court of Appeal characterized the issue before it as being whether “medical services” or “physical therapy” listed in s. 88(1) may properly be interpreted as including massage therapy recommended by a physician and provided by a registered massage therapist. In concluding that “physical therapy” includes massage therapy, the Court considered the dictionary definition of physical therapy, the Health Professions Act and the Massage Therapists Regulation, BC Reg 280/2008. At paragraph 58 of that decision the Court said as follows:

While the Regulation does not refer specifically to massage therapy in s. 88(1), I am of the view that, when all of the relevant provisions of the Regulation are read together with the Health Professions Act and its related Regulations, physical therapy may properly be interpreted as including massage therapy. To be payable under s. 88(1), the other requirements must be met as stated in the section; that is: “where an insured is injured in an accident for which benefits are provided under this Part, the corporation shall…pay as benefits all reasonable expenses incurred by the insured as a result of the injury for…necessary physical therapy…”

Although this decision will be welcomed by those representing injured motor vehicle accident clients, it must also be read with caution and with the expectation that the costs of recommended massage therapy will now be claimed as a deduction in the tort claim in claims for future care. Specifically, counsel should be aware of paragraph 24 of the decision which provided:

As the foregoing review of the cases demonstrates, the jurisprudence is inconsistent as to whether massage therapy may be payable as a mandatory benefit under s. 88(1). As a matter of statutory interpretation, the breadth of s. 88(1) should not depend on whether the court is being asked to make a deduction from a tort award or to allow a claim in an action for recovery of mandatory benefits.

The Court of Appeal has now definitively found massage therapy to be a mandatory benefit under s. 88(1). Although this decision will provide counsel with a tool to enforce payment for this form of treatment under Part 7, this decision will also result in deductions from future care awards for the cost of massage therapy.