Arguments are often raised by the Defence that the Plaintiff has failed to mitigate his / her damages and as a result a deduction should follow on the claim. We see that successful mitigation arguments may result in a reduction in the value of the claim by 10 to 50% (although more commonly in the 20% range).
It is a helpful exercise to review recent decisions and focus on the arguments that are raised for and against the defence of “failure to mitigate”. Although each claim will rely on the facts of its case, we tend to see that the arguments, generally speaking, are the same. If we can focus on these arguments, it is helpful in managing the client and the client’s claim and ensuring that the legal team is reviewing the recommendations and assisting and managing the file appropriately.
In this recent decision, Sandhu v. Bates, 2018 BCSC 2116 the Defendant did just that but was not successful in persuading the Court that the Plaintiff failed to mitigate her damages.
The Plaintiff was involved in two collisions. Her injuries were reported as headaches; injuries to her neck, back, knee, ankle, and buttocks; urine stress incontinence; sleeplessness; and anxiety. She was pregnant at the time of the first collision giving birth 2 months post first collision and had a second child 18 months later. She had pre-existing anxiety.
- Plaintiff failed to mitigate her losses with respect to her psychological and physical injuries
- Anxiety was pre-existing (all pre-existing notations will be identified by the defence and noted for the court)
- Pre-existing injury should result in a deduction of the claim
- Plaintiff failed to treat her psychological injury despite the medical recommendations made by her experts
- Plaintiff should have resumed taking prescribed medication after pregnancy / breastfeeding
- Plaintiff failed to attend rehab program / LTD benefits were thereafter cut off
- Plaintiff took only limited intramuscular stimulation treatment
- Did not attend sufficient physiotherapy sessions
- Plaintiff could have undertaken alternative recommended treatments to mitigate her damages
- Identify all the medical visits the Plaintiff has had since the date of the collision
- Identify all the treatment that the Plaintiff has attended
- Identify any treatment the Plaintiff was doing at home
- List all the reasons why the Plaintiff did not undertake certain treatments that were recommended (the Court will consider the explanations provided)
- In this case, the Plaintiff gave birth 2 months after the first collision that prevented the Plaintiff from attending treatment
- The Plaintiff also gave birth to a second child 18 months after the first child which further impeded the Plaintiffs ability to seek treatment
- The Plaintiff was also breastfeeding
- In spite of not being able to attend treatment, the Plaintiff continued to visit with her experts and doctors involved in her care
- The Plaintiff was dealing with chronic pain and anxiety, rendering successful treatment more difficult
- The Plaintiff had undertaken 7 cognitive behavioural therapy sessions. 25 more were recommended
- Plaintiff was utilizing her personal skills to treat psychological condition
- Plaintiff also attended 2 sessions of marriage counselling
- Prescribed medication was not taken due to pregnancy and breastfeeding
- Plaintiff also testified the medications were not helpful
- Plaintiffs experts agreed that reasonable treatment was sought
- Plaintiffs experts agreed that chronic pain and psychological injury is difficult to treat
The law imposes upon plaintiffs the duty to mitigate their losses. This includes taking reasonable steps to minimize any loss relating to injuries, so as to prevent plaintiffs from recovering for harm and loss caused by their own neglect. In Graham v. Rogers, 2001 BCCA 432, leave to appeal to S.C.C. refused,  S.C.C.A. No. 467, Madam Justice Rowles writing for a majority of the Court of Appeal succinctly stated the principle of mitigation of damages in personal injury cases at 35:
Mitigation goes to limit recovery based on an unreasonable failure of the injured party to take reasonable steps to limit his or her loss. A plaintiff in a personal injury action has a positive duty to mitigate but if a defendant’s position is that a plaintiff could reasonably have avoided some part of the loss, the defendant bears the onus of proof on that issue.
- In Morgan v. Galbraith, 2013 BCCA 305 at para. 78, the Court of Appeal affirmed Chiu v. Chiu, 2002 BCCA 618 as the “guiding authority” on the question of mitigation. In Chiu, the court said:
- The onus is on the defendant to prove that the plaintiff could have avoided all or a portion of his loss. In a personal injury case in which the plaintiff has not pursued a course of medical treatment recommended to him by doctors, the defendant must prove two things: (1) that the plaintiff acted unreasonably in eschewing the recommended treatment, and (2) the extent, if any, to which the plaintiff’s damages would have been reduced had he acted reasonably.
- In Gregory v. Insurance Corporation of British Columbia, 2011 BCCA 144, a case where the allegation of failing to mitigate involved a refusal to undergo cortisone injection treatment, the court said that it:
- …would describe the mitigation test as a subjective/objective test. That is whether the reasonable patient, having all the information at hand that the plaintiff possessed, ought reasonably to have undergone the recommended treatment. The second aspect of the test is “the extent, if any to which the plaintiff’s damages would have been reduced” by that treatment.
[Emphasis in original.]
The Court viewed the Plaintiff approach as reasonable. Adjustments in medication was made by her doctors based on the Plaintiffs wishes and by the fact that her chronic pain was impacting the effectiveness of the prescribed medications.
The Court opined:
 I am not persuaded that the Defendants have met their burden that Ms. Sandhu has failed to mitigate her damages with respect to her physical injuries. I make this finding based on the totality of the evidence presented and in considering the number of practitioners she engaged in the years following the accidents.
The Court further stated:
I am satisfied that her explanation was reasonable in the context of her efforts to manage her pain and ongoing anxiety. Her explanation was also consistent with the treatment overview provided by Dr. Singhai. That is, Mrs. Sandhu was trying a number of different treatments and was finding many of those treatments to be ineffective in dealing with either her pain or her anxiety or both.
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