The Questions to Ask When Assessing whether a Plaintiff has failed to Mitigate

The defence of mitigation has been raised in several recent cases with an argument that the Plaintiff’s damages should be reduced.  As we know, the Plaintiff has the duty to mitigate his/her damages. The onus is on the Defendant to prove that the Plaintiff has failed to mitigate.  In many cases, the argument has been successfully raised, resulting in a reduction of the Plaintiff’s damages.

A recent decision in Chaudhry v. John Doe, 2017 BCSC 1895 raises the issue of mitigation.  The argument raised by the defence claims that the Plaintiff failed to mitigate his damages by:

(i)                  stopping psychiatric treatment between 2013 and 2015;

(ii)                not attending vestibular physiotherapy; and,

(iii)              failing to wear hearing aids.

The Court outlines the test that must be considered to assess whether the Plaintiff has failed to mitigate.  Three questions need to be considered:  As quoted from this decision:

  1. Has a qualified medical expert has made a recommendation for a particular form of treatment;
  2. Has the plaintiff failed or refused to undertake that treatment, although it was available; and,
  3. That failure or refusal was unreasonable, and there is “some likelihood” that he would have obtained “substantial benefit” from it without exposing the plaintiff to significant risk.

Turner v. Coblenz, 2008 BCSC 1801; Janiah v. Ippolito [1985] 1 S.C.R. 146; Chiu (guardian ad litem of) v. Chiu 2002 BCCA 618 at para. 57; Middleton v. Morcke 2007 BCSC 804 at para. 37.

Reasonability is based on a subjective/objective test in the sense that two questions are asked:

  1. Would a reasonable patient in the same situation as the plaintiff and having the same information, have undertaken the recommendation; and,
  2. to what extent that treatment would have reduced the plaintiff’s losses (Gregory v. Insurance Corporation of British Columbia, 2011 BCCA 144 at para. 56).

In reviewing the test, the Court reviewed the 3 arguments raised by the Defence:

Psychiatric Treatment – Considerations

  • there was some improvement with psychotherapy treatment in the Plaintiff’s depression with Dr. Burns;
  • Was not discharged;
  • Plaintiff could not secure date with Dr. Burns due to very busy practice;
  • Dr. Burns’ offered tools to patients to assist them with coping with their conditions;
  • Dr. Burns’ testified he did all he could to assist the Plaintiff.
  • Not taking medication;
  • Plaintiff argued due to side effects which is why he stopped taking medication;
  • Evidence confirmed that the psychiatric conditions the Plaintiff had could also interfere with a Plaintiff’s ability to follow through with treatment;
  • Plaintiff was cooperative and was not resistant to recommendations;

The Court’s Conclusion:

I do not agree that the evidence established either that Dr. Burns recommended Mr. Chaudhry continue therapy, or that Mr. Chaudhry was unwilling or refused to do so.

I am not satisfied that the evidence proves Mr. Chaudhry refused or was unwilling to try medication prescribed to him.

I am not persuaded that was unreasonable, or amounted to a refusal to follow treatment.

A gap in his treatment for psychiatric conditions does not amount to a failure to mitigate.

Vestibular Physiotherapy – Considerations

  • Failed to attend vestibular physiotherapy
  • GP may not have informed the Plaintiff of the recommendation made by treating expert
  • Plaintiff admitted he did not know what vestibular physiotherapy was and wasn’t advised
  • Evidence suggested the vestibular injury was permanent as post two years

Court’s Conclusion

There was no evidence that it is likely that therapy would have decreased his dizziness symptoms. In fact,

The defendant has not persuaded me that Mr. Chaudhry failed to mitigate losses by not attending vestibular physiotherapy.

Hearing Aids

  • Did not use hearing aids (to maximize hearing function/reduce tinnitus);
  • “ignored the advice”
  • Plaintiff was not told about benefits of hearing aid
  • Defence report with recommendations not provided to Plaintiff until 84 days before trial; Plaintiff can not be faulted for this;
  • Evidence did not suggest Plaintiff was told to seek hearing aids;
  • Plaintiff had developed excellent compensatory skills to address his hearing loss
  • 50/50 chance hearing aids would correct the tinnitus
  • Report of expert did not mention the 50/50 stat, nor the possibility of symptom improvement wth the hearing aids;
  • Expert was “not sure” if he discussed tinnitus retraining with the Plaintiff.
  • Hearing difficulties also linked to psychological conditions.

Court’s Conclusion

In my view, this does not establish that Mr. Chaudhry ignored a recommendation to get hearing aids to correct his tinnitus.

I am not persuaded that it was made clear to Mr. Chaudhry that the hearing aids and TRT may help improve both his hearing function and tinnitus. In those circumstances, a failure to mitigate does not arise.


I do not find Mr. Chaudhry failed to mitigate any of his losses.

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