Court criticizes plaintiff for continuing to work after accident, saying it was "adverse to her recovery"

In reasons for judgment released this afternoon, the court in Borecka v. Wilkins, 2017 BCSC 13, criticized the plaintiff for continuing to work after the accident.  In a strange twist on the conventional argument where plaintiffs are criticized for not working following a motor vehicle accident, ICBC argued the plaintiff's damages should be reduced due to the plaintiff’s decision to continue working .  Mr. Justice Walker accepted this argument and penalized the plaintiff for continuing to work, writing:

[115]     The owner of the European Deli, Ms. Helen Ernst, liked Ms. Borecka, and found her to be a good employee. Ms. Ernest offered Ms. Borecka a part-time job working behind the counter serving customers at a remuneration of $10.45 per hour plus vacation pay. Her rate of pay has not changed.

[116]     The job requires Ms. Borecka to be on her feet during her four-hour shifts, to lean and bend over the deli counter, lift cheese and meat, cut meat in what she described as heavy meat slicers, and on certain shifts, clean the store on closing. Her fellow employees help her with her duties when she feels she cannot cope with her pain.

[119]     There is agreement amongst the medical and vocational professionals that Ms. Borecka should not, given her present condition, remain in her current job due to its physical demands. Instead, they opine that she needs to look for a different job with lighter physical duties…

[150]     Ms. Borecka has also not acted upon medical advice that she should look for a different job because her present position at the European Deli is adverse to her recovery…

[246]     Unfortunately, Ms. Borecka has chosen a course of action that is wholly inconsistent with the medical advice that she has received from various treating and expert medical professional…her decision to continue to work at the European Deli…is also preventing her recovery.

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[251]     Turning to her employment, Ms. Borecka continues to work at a job that she has been told is incompatible with her recovery. She has not pursued any other work. The duty to mitigate also applies where a plaintiff has failed to pursue appropriate, alternate employment or continues to work in a job that is clearly adverse to their recovery…

The full text of the decision can be found here: http://www.courts.gov.bc.ca/jdb-txt/sc/17/00/2017BCSC0013.htm#_Toc470174795