Mitigation / Considerations of the Plaintiff’s circumstances

Today’s post focuses on the defence of failure to mitigate, which we see being raised by the defence in most matters that go before the Courts.  It is always useful to review these cases and see how the court analyzes this legal issue.

The case is cited as McGonigle v. Parada, 2018 BCSC 1017.

The Court acknowledges that the Plaintiff failed to mitigate her damages, but also takes into account that the Plaintiff did not always have the resources to pay for treatment, and although advances were sought from the Defendant, none were ever provided.  Based on these factors and the Plaintiff’s circumstances, the Court reduced damages only by 10%. See below.

Ultimately, the Plaintiff was successful in an award of damages totalling $110,302.17, the breakdown of which is noted:

Non-pecuniary damages $  65,000.00
Past loss of income $  15,000.00
Future loss of income capacity $  40,000.00
Cost of future care $    1,500.00
Special damages $    1,057.97
TOTAL $122,557.97
Less 10% $  12,255.80



Failure to Mitigate

[91]         The defendant submits that the plaintiff’s condition is at least partly attributable to her failure to follow the course of treatment recommended to her by her doctors.  He says that her failure has resulted in her symptoms extending beyond what would have occurred had she consistently attended for treatment.

[92]         The defendant notes that there were instances where the plaintiff began a course of treatment and then simply abandoned the treatment or attended in a casual and inconsistent manner.  Ms. Clark, the physiotherapist in Hay River, testified that the plaintiff did not attend regularly and that her treatment was ended prematurely.  Some of her difficulty may be attributed to her frequent relocation from one area to another, but even after she settled in Hay River, she still did not attend to prescribed physiotherapy and acupuncture treatments regularly.

[93]         In Graham v. Rogers, 2001 BCCA 432, para. 35, the court said:

[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.  Red Deer College v. Michaels (1975), [1976] 2 S.C.R. 324 at 331, 57 D.L.R. (3d) 386 at 390, and Asamera Oil Corp. v. Sea Oil & General Corp. (1978), [1979] 1 S.C.R. 633, 89 D.L.R. (3d) 1, provide support for that proposition.  In this case, the appellant argues that the respondent did not meet the onus of proof by showing or establishing that the appellant could reasonably have avoided his income or employment losses.

 [94]         There is evidence to support the defendant’s submission that physiotherapy and acupuncture did improve the plaintiff’s condition.  Dr. Krassioukov recommended such a course of treatment in his initial report in 2015.  The plaintiff made some effort to follow the recommendation, but was inconsistent in attendance and she cancelled or did not show up for several appointments.  She has never followed a consistent pattern of treatment even though she did get some relief from the treatments.

 [95]         I recognize that the plaintiff was not always able to pay the cost of treatment or hire a personal trainer.  It is admitted that she did seek payments by way of advances from the defendant, but none were ever provided.  Nor did she at all times have the benefit of a program through Mr. Maerz’s employment; he enjoyed such benefits at some jobs but not all.

 [96]         I find that the plaintiff did fail to mitigate her loss by failing to follow a recommended course of treatment that would have improved her condition and reduced her damages, but I take account of the plaintiff’s circumstances and reduce her damages by 10% rather than the higher amount of 30% sought by the defendant.

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