An Unsuccessful Failure to Mitigate Argument

A further case in Senger v. Graham, 2018 BCSC 257 (CanLii) is published dealing with an argument of failure to mitigate. The Court confirms that the legal burden lies with the Defendant to prove that the Plaintiff has in fact failed to mitigate his or her damages.

When a failure to mitigate is alleged, the defendant has the burden of proving not only that the plaintiff acted unreasonably in not attending recommended treatment but also the extent, if any, to which the plaintiff’s damages would have been reduced had she received the recommended treatment: Chiu v. Chiu, 2002 BCCA 618 (CanLII) at para. 57.

[81]        The duty to mitigate was discussed by Dickson, J. as she then was, in Gilbert v. Bottle, 2011 BCSC 1389 (CanLII) as follows:

[201] The plaintiff has a positive duty to mitigate by taking all reasonable measures to reduce loss and damages caused by the defendant’s negligence. This duty includes an obligation to undertake reasonably available treatment that would assist in alleviating or curing his or her injuries. The principle of mitigation is based on the general proposition that a defendant should not be held liable for loss and damages the plaintiff could have reasonably avoided: Janiak v. Ippolito, 1985 CanLII 62 (SCC), [1985] 1 S.C.R. 146; Danicek v. Alexander Holburn Beaudin& Lang, 2010 BCSC 1111 (CanLII).

[202] Once a plaintiff has established that the defendant is liable for causing his or her injuries, the burden of proof shifts to the defendant. To succeed on a mitigation defence, the defence must prove that the plaintiff acted unreasonably and reasonable conduct would have reduced or eliminated the loss. Whether the plaintiff acted reasonably is a factual question. Its answer depends on consideration of all of the surrounding circumstances: Byron v. Larson, 2004 ABCA 398 (CanLII).

[203] A relevant circumstance in cases such as this is the plaintiff’s personality and condition before and after the accident. The law does not require a plaintiff to do that which cannot be controlled, nor does it require perfection in the pursuit of rehabilitation. In addition, the defendant must take the victim as found, which may affect what is to be reasonably expected. For example, a person who has struggled with life-long obesity may not be expected to lose substantial weight to discharge the duty to mitigate, even though weight loss would assist recovery. What the law requires is that the plaintiff makes contextually reasonable and sincere efforts to limit his or her damages and loss: Qiao v. Buckley, 2008 BCSC 1782 (CanLII); Antoniali v. Massey, 2008 BCSC 1085 (CanLII).

In this case, the defendant did not satisfy the burden. The Court went on to say that a Plaintiff should not have to stop their normal life to rehabilitate themselves.  That is simply not possible in a “perfect world”.  Other factors that were considered is the complexities of navigating rehabilitation including the financial burden that is placed on a Plaintiff in seeking treatment.

The Court stated:

Ms. Senger did not do more physiotherapy and massage therapy right after the accident as she had time constraints with school and managing her injuries. She also had limited funds.

[83]        I accept that explanation. While in a perfect world the plaintiff would have stopped everything and spent all her time and effort at getting as well as she could, life does not work that way. Plaintiffs cannot be expected to stop their normal lives. Life goes on. Moreover, for many people rehabilitation is often hard to navigate and beyond their budget.

[84]        Ms. Senger is clearly not a malingerer. She was trying to move forward with her life as best she could.

[85]        A number of the witnesses noted the plaintiff’s positivity. Claudia Walker testified that Ms. Senger impressed her with her positive outlook. According to her self-reports the plaintiff is living a happy life with one exception – her health and the impact it is having on her.

[86]        Dr. Collins testified that the plaintiff “absolutely” wants to get better. He was “pleasantly surprised” with the level of the plaintiff’s engagement with him. Ms. Senger’s treating occupational therapist Sean Lloyd testified that her goal is to increase her work and decrease her pain. All agreed that she was working hard to do so.

[87]        Of note there is no definitive evidence that had she engaged in more physiotherapy that her injuries would have improved. In fact, the evidence of Dr. Stewart is to the contrary. Her opinion is that earlier rehabilitation is unlikely to have resulted in a different outcome.

[88]        I accept that.

[89]        Dr. Collins concurs with that view. In his opinion, there is a possibility that more treatment right after the accident would have resulted in an earlier increase in function but that would not have improved the eventual outcome.

[90]        I pause to note that Ms. Senger did not have the funds to engage in more treatment. Of significance, there is no evidence that ICBC offered her any assistance until early 2017.

[91]        I am satisfied that Ms. Senger did the best she could with the resources available to her. Although she did not attend regular sessions with a physiotherapist, she continued to do the exercises given to her by a physiotherapist. In addition, she explored other forms of exercise to aid in her rehabilitation.

[92]        Given her efforts and the opinions of Drs. Stewart and Collins, I find no failure to mitigate.

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