The “duty to mitigate” – if I don’t treat my injuries properly, does it affect my claim?
The quick answer – and the danger of falling under the “minor injury cap”
In short – YES! Your claim could certainly be affected.
It is very important to realize that your overall claim award can be seriously reduced in reflection of how poorly you did treating your injuries.
In fact, in Alberta, by not treating your injuries as a result of a motor vehicle accident properly, your personal injury claim could even be reduced to the point of falling under what called the “minor injury cap”. This is based on one of Alberta’s provincial “statutes” (statutes are documents that set out the controlling rules in a particular area of law in a province).
If your car accident injury and/or the way you treated it falls within the legal definition of a “minor injury”, then your personal injury claim settlement might be capped at $6,061 for accidents that occurred in 2024. To read more about what a minor injury is defined as, please see the Minor Injury Regulation. Make sure to consult with your Edmonton car accident lawyer if you want more information specific to your personal injury claim.
Refresher: how do personal injury claims work?
Before we discuss more about the impact of not treating your injuries properly – let’s back up a step and explain how these personal injury car accident claims work. Specifically, personal injury claims in Alberta.
Generally speaking, your claim for settlement for your car accident injuries will be a total dollar figure. This figure is based on what facts we have about your injuries, what facts we have about how you treated them, and considers previous case law from other claimants who had similar injuries to yours. Moustarah & Company is a precedent setting law firm, meaning that Moustarah & Company is very skilled at settling claims that other claimants can use for case law.
So what does treatment have to do with personal injury claims?
Now turning back to discussing how the factor of not treating properly can affect your claim: basically, an important logical concept in personal injury law is that while someone else was responsible for causing you injuries, they are arguably not responsible for any “extra” injury to you that was within your power to prevent from happening.
What does this mean?
Let’s say for example you experienced a pretty bad whiplash injury to your neck from the car accident. You visited your doctor and they recommended you start physiotherapy right away. However, you decided not to go to the physiotherapist – and ultimately, for several months after the accident, you did not do any treatments at all. After several months, your untreated whiplash has now turned into really unpleasant, constant physical discomfort. You’ve visited your doctor again, and they’ve said your condition has now turned into “chronic pain”.
So, can you make a claim for your “chronic pain” condition that has come about?
In short – yes, you can – but arguably it may be very weak. The insurance company’s counterargument would simply be that had you gone to physiotherapy like your doctor recommended, you would not now be in the state of chronic pain that you are in.
In other words – while the insurance company is certainly responsible for compensating you for the initial whiplash pain and injury that you suffered as a direct result of the car accident, they are arguably not responsible to reimburse you for the state of chronic pain you are now in since you didn’t treat your injuries properly and in line with the medical advice of your doctor.
How is it legally my job to treat my injuries?
In law, your duty to follow the medical advice of your doctor to prevent further injury that is reasonably within your power to prevent is referred to as the “duty to mitigate”.
It is indeed a legal obligation that you have to help yourself recover from your car accident injuries. If you do not, then the other driver is arguably not going to be responsible for the full extent of medical consequences that you suffer.
A case law example
An extremely recent decision by our court – Armbruster v Nutting, 2024 ABKB 36 – illustrates what happens to your claim if you don’t treat properly.
In that case, the court found that the plaintiff suffered from whiplash, concussion, neck and back pain, headaches, impairment and other discomforts to such a degree that the total award handed down was in excess of $158k.
However, the court determined that the plaintiff did not mitigate his injuries properly – again, “mitigate” means he did not treat his injuries as well as he could have.
After accounting for his failure to mitigate, this brought his total award down to approximately $95k! In that case, for failing to treat his injuries properly – the plaintiff lost out on about a third of his total award.
Keep in mind
Note that this blog is just a very simple description of how not treating properly could affect your claim. Please keep in mind there are lots of other factors that could also affect your claim – such as if you were responsible to any degree for the accident itself, as well as if you had prior medical conditions that are related to the injuries you got from the accident itself.
If you have been injured in a car accident, we strongly encourage you to contact the offices of Moustarah & Company to speak with our experienced personal injury lawyers about all facets of our claim. We will guide you through this process and advise you of how to ensure you are properly mitigating your own particular injuries so that you don’t miss out on any portion of your proper compensation.