Judge lowers award by $162K due to injured person’s failure to mitigate
In a case arising from a motor vehicle accident (MVA) in Richmond, BC, on Feb. 1, 2017, the British Columbia Supreme Court awarded total damages of $1,023,400.33 after accounting for the injured plaintiff’s lack of mitigation.
In MacRae v Harker, 2026 BCSC 1749, the plaintiff brought an action for personal injury sustained in the MVA.
Specifically, the plaintiff sought $1,870,767.33 in damages, including non-pecuniary damages, past income loss, lost future earning capacity, future care costs, special damages, lost housekeeping capacity, and an in-trust claim.
Because of the injuries due to the MVA, the plaintiff shared that she has not worked since a year after the accident.
Insurance Corporation of British Columbia’s position
The Insurance Corporation of British Columbia (ICBC) acknowledged the defendant driver’s fault for the MVA. However, ICBC challenged the nature and extent of the plaintiff’s injuries, the resulting financial loss, and thus the quantum of damages.
Defendant’s arguments
The defendant asserted that the plaintiff:
- had only a minor accident that led to no injuries apart from maybe a very mild concussion
- was complaining about minimal, exaggerated, or fabricated pain
- failed to follow medical advice regarding treatment and exercise
The defendant sought to limit damages to between $106,116 and $459,980.84, with the amount further decreased for the plaintiff’s failure to mitigate.
Final damages award of $1,023,400.33
Initially, the BC Supreme Court awarded the plaintiff $1,186,066.50 in total damages, broken down as follows:
- $240,000 in non-pecuniary damages
- $251,771 for past loss of earning capacity
- $249,478 for future loss of earning capacity
- $304,875.94 for future care costs
- $77,541.56 in special damages
- $62,400 for loss of housekeeping capacity
- nothing for the in-trust claim
For future care costs, the court decreased the award of future care costs to $274,388.35, upon considering a 10 percent reduction for the plaintiff’s failure to mitigate.
As for all other heads of damages, the court reduced the award to $749,011.98, upon accounting for a 15 percent reduction due to the lack of mitigation.
In weighing the appropriate deductions for failure to mitigate, the court explained that the plaintiff’s progress had plateaued and her disability appeared unlikely to improve much in the future.
According to the court, the parties could agree or give submissions on costs.
Accident-related injuries
Applying the “but for” test, the BC Supreme Court determined that the plaintiff had been experiencing various physical, psychiatric, and cognitive issues due to the MVA.
Based on the medical opinions of three doctors, the court confirmed on a balance of probabilities that the MVA resulted in the following injuries:
- a mild traumatic brain injury
- a psychiatric injury, diagnosed as an adjustment disorder with mixed anxiety and depressed mood
- later cognitive issues, mood disturbances, memory deficits, and post-traumatic headaches
- chronic soft-tissue myofascial pain syndrome stemming from soft-tissue injuries to the neck, back, and shoulder
The court held that these injuries substantially affected the lives of the plaintiff, her family, and her friends.
More BC Supreme Court cases on motor vehicle accidents
Here are some of the Supreme Court of British Columbia’s other recent decisions involving injury claims arising from vehicular accidents.
In a case arising from a motor vehicle accident, the court issued a May 29 decision awarding total damages of $879,458 to an airport screening officer who developed a disabling chronic pain condition due to her back and leg injuries.
In a vehicular accident case, the court made an Apr. 23 decision dismissing the injured party’s application to call four expert witnesses and to exclude disbursements incurred by a vocational and job market analyst, an occupational therapist, an actuary, and an orthopedic surgeon.
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