BCCA upholds lower court decision – Failure to mitigate reduction of 50% in all heads of damages

In Mullens v. Toor, 2016 BCSC 1645, the Defendants were successful in proving that the Plaintiff failed to mitigate her damages, which resulted in a reduction of 50% under the heads of damages of non-pecs, past loss of earnings, loss of earning capacity, loss of pension and deferred profit sharing, and cost of future care by 10%.

This decision was appealed by the Plaintiff arguing that she should not be faced with a reduction in each head of damage as the Defence only argued a failure to mitigate under the head of damage of past wage loss (failure to return to work).  The Plaintiff took the position that the 50% reduction for failure to mitigate should only apply to the past wage loss award.

The decision of the Court of Appeal was released on Nov 6, 2017.  It disagreed with the Plaintiff’s arguments and upheld the lower court decision.

Appeal Summary:

Appeal from an order assessing damages for injuries sustained in a motor vehicle accident.  The appellant, Ms. Mullens, argues that the judge erred in assessing damages by forgetting, ignoring or misconceiving evidence in such a manner that led to inordinately low damage awards, that inconsistent findings were made and that it was an error to reduce all heads of damage for a failure to mitigate when the failure to mitigate argument was made only in respect to past wage loss.  Held: appeal dismissed.  The evidence before the judge supported his findings which were not inconsistent.  The arguments made by the respondent with respect to a failure to mitigate past loss of income were logically connected to the other heads of damage.  The issue was generally explored in the evidence and generally pleaded.  Failure to mitigate was properly before the court with respect to all of the heads of damages.


The Plaintiff was found to have failed to mitigate her damages for the following reasons:

  1. failure to return to work;
  2. delay in taking medication;
  3. not seeking psychiatric treatment;
  4. not having consistent treatment; and
  5. delay in obtaining recommended treatment being a negative factor in her prognosis

The reductions:

Non-pecs                            $140,000                              50% reduction                   = $70,000

Past Loss of earning        $191,747                              50% reduction                   = $95,873 ($99,800)

Loss of capacity                 $375,000                              50% reduction                   = $175,000 ($210,000)

Cost of future care           $37,000                                 10% reduction                   = $34,020


The Court of Appeal in Mullens v. Toor, 2017 BCCA 384 stated the following:


[53]         Ms. Mullens says that the respondents pleaded only a boilerplate failure to mitigate, and specifically argued only that past loss of income should be reduced by 50%.  However, the judge also reduced his awards for non-pecuniary damages, loss of earning capacity, loss of pension and deferred profit sharing by 50% and the future cost of care by 10% because of a failure to mitigate.

[54]         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.

[55]         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.

[56]         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.

[57]         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.

[58]         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).

[59]         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.

[60]         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.

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