A negative contingency that is often discussed in a personal injury claim is when a Plaintiff fails to mitigate. The deduction for a successful argument by a Defendant that the Plaintiff has failed to mitigate their damages falls within the range of 10% to 40% based on my review of multiple recent decisions.
It is always recommended that a legal team carefully manages the recommendations of a Plaintiff’s treatment plan and ensure your client is following the instructions of their physicians. It is an area that should not be overlooked because these deductions for failure to mitigate are, in most cases, preventable.
I have blogged about Mitigation in a post entitled the “Subjective / Objective” Test.
A recent decision referenced as Ahmad v. Pandher, 2017 BCSC 1732 explores the issue of mitigation which was raised by the Defendant.
The Court states that mitigation is a test of “reasonableness, not perfection and mere delay in seeking recommended treatment is not necessarily unreasonable.
This position was outlined in Lourenco v. Pham, 2013 BCSC 2090:
 The defendants assert that Ms. Lourenco has failed to mitigate her damages. They argue that had the plaintiff pursued physiotherapy in accordance with Dr. Ezekiel’s recommendation on December 4, 2009 that her symptoms would have improved earlier.
 Once the plaintiff establishes that the defendants are liable for her injuries, the burden of proof shifts to the defendants. In order to prove the plaintiff did not meet her duty to mitigate, the defendants must establish that she acted unreasonably and that reasonable conduct would have reduced or eliminated the loss. Whether the plaintiff acted reasonably is a factual question.
 The test for failure to mitigate set out in Chiu v. Chiu, 2002 BCCA 618 (CanLII) at para. 57, which provides:
 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…
 The defendants argue that Ms. Lourenco was not compliant with Dr. Ezekiel’s advice during the first post-MVA appointment to attend physiotherapy. They claim that this demonstrates a failure to mitigate her losses and suggests that her injuries were not as serious as she claims. They assert that the evidence shows that physiotherapy did assist in an improvement of her symptoms and provided her with a regime that affords her some relief. Ms. Lourenco was unreasonable in not pursuing physiotherapy sooner than March 2010 and that her pain and suffering would have been reduced if she had. The defendants’ claim is similar to other failure to mitigate arguments that have been considered and rejected in previous cases.
 In Smith v. Both, 2013 BCSC 1995 (CanLII) the court did not accept the defendant’s argument that the plaintiff had failed to mitigate her damages despite the fact that there was an 18 month delay between her doctor’s recommendation that she undertake a physiotherapy and rehabilitation program and her commencing such a program.
 In Manson v. Kalar, 2011 BCSC 373 (CanLII) the plaintiff’s doctor recommended that he attend physiotherapy and strengthen his core muscles by undergoing an exercise program under the supervision of a personal trainer. The plaintiff did not undertake any kind of exercise program and only attended minimal physiotherapy appointments. Yet the court similarly rejected the defendant’s claim of failure to mitigate damages.
 While I accept that physiotherapy had positive effects on Ms. Lourenco’s injury symptoms, I cannot find that she acted unreasonably by not pursuing treatment until four months after the MVA. Again, Ms. Lourenco was a pedestrian hit by a vehicle. I do not doubt that she suffered a great deal of pain and that her belief that physiotherapy would be too painful to pursue right after the MVA was reasonable. I also accept that she did not have the money to pay for physiotherapy. It is not reasonable, as the defendants suggest, that she borrow money from her parents and friends to enable her to go to physiotherapy.
 The defendants have not met the onus of proof required to demonstrate that the plaintiff could have avoided all or a portion of the loss.
In the “Ahmad” decision, the Court assesses mitigation in this case, and takes the position that the Defendant’s argument that the Plaintiff failed to mitigate his damages has failed.
 The defendants say that damages should be reduced due to the plaintiff’s failure to mitigate his loss. The defendants submit that the numbers proposed by the defendants incorporate a reduction for mitigation and as such no further reduction is needed from the defence numbers. The plaintiff says that he did not act unreasonably and he did mitigate by returning to work after the initial 13 months and no deduction should be made.
 The test for failure to mitigate is set out in Chiu v. Chiu, 2002 BCCA 618 at para. 57:
 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. …
 The defendants say that Mr. Ahmad failed to mitigate by not following an active exercise program after it was recommended to him by Drs. Hair and Dhawan and failing to join a gym. Mr. Ahmad testified that he did exercise, using a treadmill, walking, working in his garden and doing the stretches recommended by his physiotherapists. Mr. Ahmad did follow the advice in seeking the active rehabilitation program and carrying out the exercises recommended by the physiotherapists. Mr. Ahmad testified that he was told by Dr. Hair that it was not necessary for him to do exercises at a gym but he could do them at home.
 With respect to the delay in beginning an active exercise program, it may have been advisable for Mr. Ahmad to join a gym and begin an active exercise program as soon as it was recommended. However, Mr. Ahmad is held to a standard of reasonableness, not perfection, and mere delay in seeking recommended treatment is not necessarily unreasonable: see for example Lourenco v. Pham, 2013 BCSC 2090 at paras. 49-56. In any event, the defendants have not shown on a balance of probabilities that beginning an active exercise program earlier would have reduced Mr. Ahmad’s symptoms. The fact that earlier treatment may have been efficacious is insufficient: see for example Smith v. Both, 2013 BCSC 1995 at paras. 110-111; Manson v. Kalar, 2011 BCSC 373 at para. 40.
 As a result, I conclude that no reduction in the damages should be made for a failure to mitigate.
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