Tag: mitigation of damages

Challenging Opposing Witnesses: The Rule in Browne v. Dunn

(Update March 8, 2012 – The case discussed below was set for a new trial after the Court of Appeal found the trial judge made errors applying the law of mitigation, causation and credibility.  The Court of Appeal Judgement can be foud here)
Browne v. Dunn is an English case that’s almost 120 years old.  Despite it’s vintage its a case all British Columbian’s should be familiar with when going to trial.
The rule in Browne v. Dunn states that if you intend to contradict an opposing witness on a significant matter you must put the contradictory version of events to the witness on cross examination.  Failure to do so permits the Court to prefer the witness’ version over the contradictory version.  In practice, failure to follow the rule of Browne v. Dunn can prove damaging to a case and this was demonstrated in reasons for judgement released today by the BC Supreme Court, Vancouver Registry.
In today’s case (Wahl v. Sidhu) the Plaintiff was involved in a significant collision in Surrey, BC in 2006.  The Plaintiff sustained various injuries.  At trial he sought over $1.1 million dollars.  Much of his claim was dismissed but damages of $165,000 were assessed to compensate him for physical and psychological injuries from the crash.
During the course of the trial the Defence lawyer argued that the Plaintiff was not credible and was exaggerating his claim.   The lawyer relied on evidence from various treating medical practitioners who had negative opinions about the Plaintiff’s efforts and argued that “the plaintiff is intentionally faking symptoms“.   The Defence lawyer did not, however, cross examine the Plaintiff with respect to these witnesses allegations.  Mr. Justice Chamberlist relied on the rule in Browne v. Dunn and refused to place any weight on these challenges to the Plaintiff’s credibility.  Specifically the Court provided the following useful comments:
[213] I wish to comment on what occurred and what did not occur with respect to the evidence of Mr. Wahl at trial.  My notes of his evidence, particularly his evidence given under cross-examination, indicate that negative comments made by the various treators and Mary Richardson and Gerard Kerr were not put to him under cross-examination so that he would have an ability to deal with that evidence.  It is my view that the witness must be confronted with these opinions before the opinion can be properly dealt with (Browne v. Dunn, (1893) 6 R. 67 (H.L.)).  This is especially required in a case such as this where the defence submits that the plaintiff, in this case, is not motivated to get better and that the credibility of the plaintiff is at issue.
[217] The defence, in this case, called Dr. Bishop as a witness. …As indicated earlier Dr. Bishop was originally retained by the plaintiff but did not call Dr. Bishop at trial.  The defence made a point of filing Dr. Bishop’s reports and defence called her evidence as part of its case.  In the defence written submissions, the defence maintains that “her evidence makes it clear that she is of the opinion that the plaintiff is intentionally faking symptoms”….

[219]     It is important to note the first lines of the evaluation of effort where Dr. Bishop said, and I repeat:

. . . Although effort testing of itself cannot determine motivation as submaximal effort may be multifactorial in origin (e.g. fear of pain, anxiety with regard to performance, perception of dysfunction, need to demonstrate distress, etc) . . .

That finding cannot be relied upon, in my opinion, by the defence when the particulars of those conclusions were not put to the plaintiff when he was on the stand….

Can Injuries in an ICBC Claim be Worth Less for Failing to Lose Weight?

The short answer is yes.  In BC, if a Defendant who negligently injures you can prove that the extent of your injuries would have been less if you took reasonable steps to ‘mitigate’ your loss then the value of your damages can be reduced accordingly.  This principle of law is called ‘failure to mitigate’.
Failure to mitigate can include failing to follow a reasonable treatment or rehabilitation program such as a weight loss program.  Reasons for judgment were released today by the BC Supreme Court demonstrating the ‘failure to mitigate’ principle in action.
In today’s case (Rindero v. Nicholson) the Plaintiff was injured when seated as a rear-seat passenger in a pick up truck which struck a vehicle that ran a red light.  Fault was admitted leaving the court to deal with the issue of quantum of damages (value of the Plaintiff’s injuries and loss). In assessing the Plaintiff’s non-pecuniary damages (money for pain and suffering and loss of enjoyment of life) at $36,000 Mr. Justice Meiklem found that the Plaintiff suffered from Patellofemoral pain (knee pain), a slight exacerbation of pre-existing post traumatic stress disorder and recovered soft tissue injuries to the neck and shoulders with accompanying headaches.
The Court found that the Plaintiff’s knee injury was the most serious of the injuries and summarized its effect on the Plaintiff’s life as follows:
The plaintiff’s knee injury is probably chronic and not likely to fully resolve. It is troublesome and painful when he stands for long periods, sits for long periods, or overextends any vigorous physical activity….The most significant limiting effect on his activities that he mentioned in relation to his knee pain was restriction on his style of big game hunting, and fishing. He hunts only from roads as opposed to hiking off into the bush as he sometimes did, and he avoids fishing areas that involve difficult access.
In arriving at the $36,000 figure the court reduced the damages by 20% for the plaintiff’s failure to mitigate, specifically the failure to lose weight which would have reduced the extent of the knee pain.  Mr. Justice Meiklem summarized and applied the law of failure to mitigate as follows:

[30] The defendants argue that the plaintiff’s failure to significantly reduce his weight has contributed to the severity and persistence of his knee pain and amounts to a failure to mitigate, which should reduce his award. There can be no doubt that the plaintiff would suffer less with knee pain that is increased with physical activity if he lost weight. The medical evidence confirms this elementary physical principle. At an estimated 265 pounds at trial he was about 25 pounds heavier than he was when examined by Dr. McKenzie in July 2008. I note that in July 2008 his left knee pain, which is his primary injury, was less prominent than his right knee pain. I appreciate that sore knees would probably make it more difficult to engage in the vigorous exercise that is usually part of a weight loss program, but the plaintiff has demonstrated that he can lose a considerable amount of weight when he changes diet and lifestyle, and that his left knee pain was lessened when he weighed less.

[31] I note that the plaintiff told Dr. McKenzie that he experienced knee pain when riding his mountain bike more than an hour as soon after the accident as June 2005, which, apart from showing that his knee injury was not very disabling,  shows that exercise is not out of the question for him. I find that the defendant has established a failure on the part of the plaintiff to mitigate his damages.

[32] The extent to which damages should be reduced is obviously not amenable to any precise calculation on these facts, but I note that in the Collyer case cited by the plaintiff, an award of $80,000 was reduced by $10,000 for a comparable failure. In the Crichton case cited by the defendants a 30% discount was applied for failure to participate in group psychotherapy sessions recommended by a psychiatrist and a family doctor, which would address an anxiety disorder and thereby assist in dealing with chronic pain. I find that a discount of 20% to the award I would otherwise make to account for failure to mitigate is appropriate.

On another note, this case contains a useful discussion of plaintiff credibility and some of the factors courts look at when gauging this.  Additionally, this case contains a very useful discussion of the law of ‘diminished earning capacity’ (future wage loss) at paragraphs 35-39.

More on Mitigation of Damages in ICBC Injury Claims

I’ve written previously about mitigation of damages in ICBC Injury Claims and reasons for judgment were released today by the BC Supreme Court (Ponipal v. McDonagh) applying this legal principle.

 Mitigation, in general terms, means taking reasonable steps to reduce one’s damages.  In a personal injury lawsuit mitigation usually revolves around taking reasonable steps in following the advice of treating physicians.

In today’s case the Plaintiff was injured in a 2007 intersection crash in Vernon, BC.  The Plaintiff suffered various soft tissue injuries.   In the course of her recovery an exercise and conditioning program was recommended to the Plaintiff.    Mr. Justice Blair found that the Plaintiff ‘unreasonably failed to pursue the program’ and that doing so would have reduced the effect of her injuries.

As a result of this ‘failure to mitigate’ Mr. Justice Blair reduced the Plaintiff’s award for non-pecuniary damages (pain and suffering) of $35,000 by 10%.  The discussion with respect to mitigation of damages was set out at paragraphs 25-29 which I set out below:


[25]            The defence points to Mrs. Ponipal’s omission to embark on a structured exercise and conditioning program as recommended by Drs. Travlos and Reebye as constituting a failure to mitigate the physical difficulties arising from the collision.  The defence submits that this omission by Mrs. Ponipal ought to result in the reduction of her general damages.

[26]            Antoniali v. Massey, 2008 BCSC 1085 outlines a framework which I will follow in this case in determining whether the defendant has established that Mrs. Ponipal failed to mitigate her damages.  The questions are as follows:

1.         whether an exercise and conditioning program under a trainer’s guidance would have reduced or eliminated the effect of the injuries;

2.         whether the reasonable plaintiff in Mrs. Ponipal’s circumstances would have followed such a program;

3.         whether Mrs. Ponipal unreasonably failed to follow such a program; and

4.         the extent to which Mrs. Ponipal’s damages would have been reduced if she had followed such a program.

[27]            I am satisfied from the evidence of Drs. Travlos and Reebye, both being specialists in physical medicine and rehabilitation, that an exercise and conditioning program under a trainer’s guidance would have reduced the effect of Mrs. Ponipal’s injuries.  I am further satisfied that a reasonable individual in Mrs. Ponipal’s circumstances would have undertaken such a program and that she unreasonably failed to pursue the recommended program.  Mrs. Ponipal testified that there were two reasons why she did not embark on an exercise program, the first being that she wanted to know the results of the nerve conduction study suggested by Dr. Travlos before she undertook the exercise program.  She expressed concern that the exercise program might worsen the numbness and tingling in her right arm and hand, negatively affecting her ability to play the piano.  However, there is no evidence that she discussed that concern with Dr. Travlos or any other of her caregivers.  The second reason she stated was the financial burden imposed in hiring a personal trainer.  However, this is not a family devoid of means and Mrs. Ponipal’s husband Garry testified that they would have done that which was necessary to assist his wife’s recovery.

[28]            The extent to which Mrs. Ponipal’s non-pecuniary damages would be reduced as a result of her failure to take the exercise and conditioning program is difficult to assess.  In Antoniali,Preston J. reduced the pre-trial non-pecuniary damages by 15 percent and the post-trial non-pecuniary damages at 50 percent.  In Job v. Van Blankers, 2009 BCSC 230, Ker J. reduced the plaintiff’s non-pecuniary damages by 10 percent to reflect her failure to mitigate her damages.

[29]            I assess Mrs. Ponipal’s failure to mitigate by reducing her non-pecuniary damages by 10 percent.

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Personal Injury Lawyer

When not writing the BC Injury Law Blog, Erik is the managing partner at MacIsaac & Company, based in Victoria, B.C. He is also involved with combative sports regulatory issues and authors the Combat Sports Law Blog.

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