More on Mitigation of Damages: Working When Your Doctor Says Stop

As previously discussed, if you sue for damages as a result of personal injuries you have a duty to minimize you losses.  If you fail to take reasonable efforts to do so the damages you are entitled to can be reduced.  This legal principle is called “failure to mitigate“.
The most common argument addressing mitigation relates to following doctor’s advice.  If a person fails to follow medical advice without good reason their damages can be reduced.  Earlier this week the BC Court of Appeal had an opportunity to address an interesting mitigation issue: Does a Plaintiff fail to mitigate their damages when they ignore their doctor’s advice to take time away from work?
In this week’s case (Bradshaw v. Matwick) the Plaintiff was in a 2006 rear-end crash.   Following the collision the Plaintiff’s doctor “recommended that the plaintiff stop working and enter into a full-time rehabilitation program.  He felt that the plaintiff’s recovery would be hastened by entering into such a program”  The Plaintiff did not follow this advice.  When asked why he explained that he simply could not afford time away from work testifying that “his financial situation was such that he needed to continue working“.
At trial the Plaintiff was awarded just over $268,000 in total damages for his injuries and loss.  The Defendant appealed arguing, amongst other things, that the trial judge erred in failing to reduce the damages for the Plaintiff’s failure to follow his doctor’s advice.  The BC Court of Appeal disagreed with this argument finding that the Plaintiff’s decision to continue working out of financial need was reasonable.  In dismissing this aspect of the appeal the Court provided the following helpful reasons:

[16]         The trial judge found that the plaintiff had acted reasonably in returning to work in August 2006, and that he had generally followed recommendations for rehabilitative exercise:

[40]          In regards to Mr. Bradshaw continuing to work in August 2006, against his doctor’s advice, Mr. Bradshaw had no choice.  The plaintiff had a less than accommodating employer.  The plaintiff was aware that in order to keep his job, he had to work at his job.  It would be reasonable for the plaintiff to conclude based on his job circumstances, that taking a substantial time off to recover would result in the loss of his job.  The effects for the plaintiff in this respect would be devastating.  He has worked for Rebelle for over twenty years.  He has limited reading and writing skills which would make any new job which would require training difficult for him.  It was not unreasonable for the plaintiff, in light of this circumstance, to make the decision to struggle on and hope for the best in his recovery while continuing to work.

[41]          Additionally, the plaintiff had significant commitments to a wife and two children.  He, at best, earns a moderate to good income in the $50,000 range.  It is highly unlikely that he could have survived on the modest wage loss funds available to him either through the defendants’ insurer or through the employment insurance program.  His wife, Ms. Bennett, has only ever worked part-time and although she no doubt contributes to the family expenses, the household consists of two adults, and two children, in a home they own with a mortgage.

[17]         On appeal, the defendants point to evidence from the plaintiff’s doctor to the effect that he would have given the plaintiff a medical note recommending full-time rehabilitation if one had been requested, and to the employer’s evidence that it would have given the plaintiff a leave of absence if such a note had been provided.  They also argue that the plaintiff presented only minimal evidence of his financial position in August 2006, and contend that the trial judge relied on inadmissible hearsay.  The defendants say that, in the face of that evidence, the judge’s finding that it was reasonable for the plaintiff to return to work represents a palpable and overriding error.

[18]         I am unable to accept the defendants’ assertion.  There was considerable evidence concerning difficulties in the relationship between the plaintiff and his employer.  In the circumstances, it was open to the trial judge to accept that the plaintiff had a reasonable apprehension that he might lose his employment if he did not return to work.  While the evidence of the plaintiff’s precise financial position in August 2006 was limited, there was sufficient information before the trial judge to allow him to conclude that the plaintiff’s financial position was not sufficiently secure to allow him to risk losing his job.

[19]         In any event, even if it had been unequivocally established that the plaintiff’s recovery was delayed by his decision to return to work in August 2006, it would not prove that the decision resulted in an exacerbation of his damages.  The plaintiff’s immediate wage losses were significantly reduced by his decision to return to work.  It is not at all apparent that any consequential increase in his non-pecuniary losses or subsequent wage losses would have offset the immediate gains.  Thus, the defendants have failed to show that the decision to return to work in August 2006 resulted in any net increase in the plaintiff’s damages.