Reasons for judgement were published this week upholding a trial judge’s 50% reduction of damages in a personal injury lawsuit for failure to mitigate.
In the recent case (Mullens v. Toor) the Plaintiff was injured in a 2012 collision caused by the Defendant. The Plaintiff suffered physical and psychological injuries and the Court concluded the Plaintiff’s recovery could have been improved had she more diligently followed medical advice. As a result the Plaintiff’s assessed non-pecuniary damages, loss of earning capacity, loss of pension and deferred profit sharing were reduced by 50% and the future cost of care by 10%.
The Plaintiff appealed arguing the failure to mitigate reduction should only apply to her non-pecuniary damages. The BC Court of Appeal disagreed. In upholding the trial result the Court provided the following reasons:
 Failure to mitigate is a positive allegation that should be pleaded and argued at trial: Hosking v. Mahoney, 2010 BCCA 465 at para. 34. Ms. Mullens thus submits that the judge erred in deciding issues on a basis that was not specifically pleaded or argued before him and properly should have invited counsel to address the claim: see e.g., Carmel Pharmacy Ltd. v. Tri City Contracting (B.C.) Ltd., 2014 BCSC 337 at para. 2.
 In their response to civil claim the respondents pleaded as follows:
The Plaintiff has failed to follow medical advice with respect to treatment or exercise.
The Plaintiff could, by the exercise of due diligence, have reduced the amount of any alleged injury, loss, damage or expense, and the Defendants say that the Plaintiff failed to mitigate her damages.
 The respondents say it is a mischaracterization to say that they did not argue for a reduction across all heads of damages because of a failure to mitigate. A fair reading of the written submissions and the evidence as presented at trial is that mitigation was a key issue for all of Ms. Mullens’ claims.
 In my view, the respondents’ pleading is clearly not deficient. In Saadati v. Moorhead, 2017 SCC 28 at paras. 10‑12, Brown J., for the Court, found that a claim for “general damages for pain and suffering, loss of earning capacity past, present and future, loss of opportunity, loss of enjoyment of life, loss of physical heath…” was sufficiently broad to put the opposing party on notice that the claim encompassed mental injury. Here the pleading is explicit.
 Much of the evidence at trial, both in direct and cross-examination, concerned matters related to the mitigation issue pleaded: the appellant’s failure to return to work, her delay in taking medication, not seeking psychiatric treatment, not having consistent treatment, and the delay in obtaining recommended treatment being a negative factor in her prognosis. These issues were canvassed by both the expert witnesses (Dr. Zoffman, Dr. Finlayson, Dr. Robertson, Dr. Maloon) and lay witnesses (Mr. Gill, Ms. Macpherson, Ms. Percy and Mr. Towsley).
 The issue of mitigation was both specifically pleaded and extensively explored at trial. Experts testified to the mental health benefits of returning to work and the benefits of comprehensive psychiatric treatment. Counsel raised a failure to mitigate in general terms during closing submissions, and made specific reference to the benefits of returning to work, such as improved mental heath. The specific arguments made with respect to a failure to mitigate past loss of income were logically connected to the other heads of damage claimed.
 In my view, it cannot fairly be said that mitigation was not an issue properly before the court with respect to all of Ms. Mullens’ claims for damages. I see no merit to this ground of appeal.
Update November 6, 2017 – Today the BC Court of Appeal dismissed an appeal of the below judgement
Reasons for judgement were released today by the BC Supreme Court, New Westminster Registry, cutting a Plaintiff’s non-pecuniary damage award in half due a failure to mitigate loss.
In today’s case (Mullens v. Toor) the Plaintiff was injured in a 2012 collision caused by the Defendant. The Plaintiff suffered physical and psychological injuries and the Court concluded the Plaintiff’s recovery could have been improved had she more diligently followed medical advice. As a result the Plaintiff’s non-pecuniary assessment of $140,000 was reduced by 50%. In reaching this result Mr. Justice Verhoeven provided the following reasons:
 She has been unreasonably resistant and reluctant to accepting that her psychological condition requires medical treatment, including the use of anti-depressant medication, and psychiatric treatment. She was resistant to the early advice of Dr. Chu about anti-depressant medication in August 2012. She resisted the advice of Dr. Hanson until finally relenting in December 2012 only when he insisted. She testified that she was concerned that a diagnosis of depression and taking anti-depressant medications could have some negative consequences, such as for insurance. She did not give much detail about this. This could justify some degree of reluctance but no more. Embarrassment about accepting treatment for a mental injury is not a valid excuse. ..
 In sum, the plaintiff ought reasonably have begun use of anti-depressant medication earlier than she did initially. She could have resumed use of Pristiq or other suitable anti-depressant medication by July 2015 when she stopped breastfeeding, if not earlier. She ought to have been treated by a psychiatrist. Better engagement with medical and psychiatric treatment would have also increased the chances of a successful attempt to return to work which could have been attempted in early 2013 and again in 2015, and 2016.
 I doubt that the plaintiff has engaged in physical exercise to the extent recommended. Physical exercise has been consistently recommended to her. In examination in chief she testified that she followed the exercise advice of Dr. Chu and of her physiotherapist to the greatest extent possible. However on cross examination she was vague and evasive about the extent to which she had followed this advice. She testified that she tried to do what was recommended but could not recall exactly. Currently she participates in pilates at a local facility 3 to 4 times per week. Her husband candidly acknowledged that she was not doing much exercise other than attending pilates. However the evidence concerning exercise does not allow me to derive sufficiently firm conclusions that would be necessary to conclude that the defendant has met its burden to establish a failure to mitigate in this respect.
 A question is whether the plaintiff’s refusal to attempt to return to work and her reluctance to accept and failure to obtain full psychiatric treatment is rooted in her accident injuries, such that a deduction for failure to mitigate would not be appropriate. However there is no basis for such a finding in the medical or other evidence. The plaintiff is highly educated and intelligent. There is some evidence that she has experienced some cognitive difficulties but these are not severe. She displayed considerable intelligence in giving her evidence, especially in describing her previous work. I do not accept that the plaintiff was impaired in her rational decision-making capacity in relation to her career and her treatment…
 Based on all of the circumstances of this case, including consideration of the cases cited to me my both counsel, in my view a fair and reasonable award for non-pecuniary loss is $140,000
 I reduce this by 50% to $70,000 on the basis of failure to mitigate loss.