More on BC Personal Injury Claims and the Duty to Mitigate

If you advance a BC Personal Injury Claim (a tort claim) the courts impose a duty on Plaintiffs to mitigate their losses.  What this means is a Plaintiff must take reasonable steps to minimize their losses.  If a Plaintiff unreasonably fails to follow medical advice or fails to return to work in a timely fashion despite being physically able to do so the court may reduce damages accordingly.
Reasons for judgment were released today by the BC Supreme Court, Vancouver Registry, demonstrating this legal principle.
In today’s case (Leung v. Foo) the Plaintiff was injured when travelling as a passenger in a single vehicle collision.   Fault was admitted by the driver of the Plaintiff’s vehicle.   The Plaintiff sustained ‘moderate soft tissue injuries’ and a disc herniation as a result of this collision.   Mr. Justice Cohen valued the Plaintiff’s non-pecuniary loss (pain and suffering) at $65,000 and then reduced these damages by 10% due to the Plaintiff’s ‘failure to mitigate ‘.  The Court summarized and applied this area of law as follows:

[112] The defendants submit that any award of damages should be reduced to reflect the plaintiff’s failure to mitigate through her delay in seeking psychological assistance, her refusal to participate in physiotherapy, her being discharged from CBI, and her failure to pursue an active exercise program in the face of medical advice to do so.

[113] Damages are not recoverable for any loss that a claimant ought to have avoided.  A claimant has a duty to mitigate losses, which includes taking all reasonable steps to minimize any loss that results from an injury, and bars a claimant from claiming any part of the damages that can be attributed to his or her neglect to take such steps.

[114] Mitigation limits recovery based on an unreasonable failure of the injured party to take reasonable steps to limit his or her loss.  A plaintiff in a personal injury action has a positive duty to mitigate, though the onus of proof on this issue rests with the defendant.  See: Graham v. Rogers, 2001 BCCA 432, leave to appeal dismissed, [2001] S.C.C.A. No. 467.

[115] In Maslen v. Rubenstein, at para. 11, the Court of Appeal held that where the court finds that injury has been suffered and mitigation issues are raised, the court must decide whether the defendant has established that by following advice which the plaintiff received or ought to have obtained, the plaintiff could have overcome the problem or could in future overcome it.  The advice might, for instance, be to eliminate treatment, make “lifestyle changes” or adopt psychotherapy, physiotherapy or an exercise regimen.  Where appropriate remedial measures would resolve the problem, damages can be awarded only in respect of the period up to the date when, in the estimation of the fact-finder, the problem ought to have been resolved, or ought to be resolved.

[116] Failure to follow a recommended exercise program commonly results in a reduction in damages for the plaintiff’s failure to mitigate.

[117] The defendants submit that the plaintiff has not given a satisfactory explanation as to why she did not exercise.  In addition, the plaintiff would have the Court accept that she did not seek the assistance of a psychologist because she lacked the sophistication necessary to do so in the face of her perception that Dr. Leung refused to give her a referral.

[118] The defendants submit that the plaintiff’s actions do not suggest a woman incapable of securing her own treatment.  On the contrary, the plaintiff took several proactive steps in relation to the treatment of her injuries.  The plaintiff found another GP in Dr. Wong, having lost faith in Dr. Leung; arranged her own massage and chiropractic treatments; discontinued physiotherapy; and decided against the steroid injections suggested by Dr. Adrian.

[119] The defendants also say that it is clear that counselling was discussed with the plaintiff in March 2008 by Dr. Wong.  Yet the plaintiff did not see Dr. Jung until September 2008, approximately six months later.  This is not evidence of a person anxious to obtain psychological treatment.  Rather, such delay and ambivalence is consistent with a person who was told that psychological treatment was recommended in 2006 (via Dr. Leung’s May 2^nd medical-legal report) but failed to take any immediate steps in that regard.  The plaintiff herself admitted that she did not pursue psychological treatment or start an exercise regimen because she was too busy with work.  She gave the same reason for missing appointments with CBI.

[120] The defendants submit that plaintiff’s decisions to not pursue treatment may well have delayed or prevented the improvement of her symptoms, a state of affairs for which the defendants should not be held responsible.

[121] I agree with the defence position on mitigation and find that the plaintiff’s failure to mitigate resulted in an extension of her recovery beyond that considered reasonable for her injuries, and that the plaintiff’s general damages award should be reduced by 10%.