This post will go over the test for mitigation. The following cases are referenced in this post:
Janiak v. Ippolito, 1985 CanLII 62 (SCC), [1985] 1 S.C.R. 146.
Graham v. Rogers, 2001 BCCA 432 (leave to appeal refused)
Chiu v. Chiu, 2002 BCCA 618 (CanLii)
Turner v. Coblenz, 2008 BCSC 1801 (CanLii)
Latuszek v. Bel-Air Taxi (1992) Ltd., 2009 BCSC 798
Salzmann (Litigation Guardian of) v. Bohmer, 2009 BCSC 1586
Tayler v. Loney, 2009 BCSC 742
Danicek v. Alexander Holburn Beaudin & Lang, 2010 BCSC 1111 at para. 234
Gilbert v. Bottle, 2011 BCSC 1389
Gregory v. Insurance Corp. of British Columbia, 2011 BCCA 144
Maltese v. Pratap, 2014 BCSC 18
Nguyen v. Bhatti, 2017 BCSC 1537
In a recent BCSC decision Nguyen v. Bhatti, 2017 BCSC 1537, the law as it pertains to a Plaintiff’s obligation to mitigate is analysed and discussed. The test for mitigation has been referenced as the “Subjective / Objective Test” in a BCCA decision Gregory v. Insurance Corp. of British Columbia, 2011 BCCA 144, which will be summarized below.
Gregory v. Insurance Corp. of British Columbia, 2011, BCCA 144
The Plaintiff successfully appealed the trial decision to reduce the entire amount of the Plaintiff’s award by 10% for failing to mitigate her damages. The Plaintiff failed to attend treatment for cortisone injections and the analysis to undertake is whether the Plaintiff “ought reasonably to have undergone the recommended treatment.”
The argument raised on appeal by the Plaintiff was that while she was prescribed cortisone treatments, there was an absence of medical evidence confirming that such cortisone treatments would benefit the Plaintiff’s condition, and therefore, in the absence of this specific expert opinion, it is not plausible to suggest that the Plaintiff failed to mitigate her damages by failing to attend cortisone treatments.
Reference was made to Turner v. Coblenz, 2008 BCSC 1801 (CanLii) in which 10% of the Plaintiff’s award was deducted for failure to attend injection therapy that had a 50% chance of success. The trial judge accepted this decision in support of the conclusion that the Plaintiff failed to mitigate.
The Court of Appeal disagreed with this analysis.
The test for failure to mitigate was referenced in Chiu v. Chiu, 2002 BCCA 618 (CanLii):
“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. These principles are found in Janiak v. Ippolito, 1985 CanLII 62 (SCC), [1985] 1 S.C.R. 146.”
In Gregory v. ICBC, the Court of Appeal outlines the test as follows:
“I 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. The Turner case, on which the trial judge relies, uses slightly different language than this Court’s judgment in Chiu: “there is some likelihood that he or she would have received substantial benefit from it …”.
In this case the trial judge found as a fact that the cortisone shots were “not necessarily curative, they reduce the inflammation… Sometimes the relief is only temporary but sometimes the injections bring long term benefits”. She did not find that the treatment would have reduced the symptoms. In addition there is the fact that the plaintiff reasonably believed the diagnosis was a tear and that the injections would have no healing effect on a tear.
Regardless of whether the trial judge erred in finding on the evidence that it was objectively reasonable for the plaintiff to undergo the injections, I conclude that she erred in her application of the correct test, as articulated in Chiu. The physicians testified only that it was a reasonable treatment to try, and it might afford some relief. In my view such an opinion does not meet the threshold for reducing an award as described in Chiu.
I would accede to this ground of appeal and reverse the judge’s decision to reduce the award by 10%.”
In Nguyen v. Bhatti, 2017 BCSC 1537, the Court states the following:
“A plaintiff has an obligation to take all reasonable measures to reduce his or her damages, including undergoing treatment to alleviate or cure injuries: Danicek v. Alexander Holburn Beaudin & Lang, 2010 BCSC 1111 at para. 234. See also Graham v. Rogers, 2001 BCCA 432 at para. 35; leave to appeal refused, [2001] S.C.C.A. No. 467.
Once the plaintiff has proved the defendant’s liability for his or her injuries, the defendant must prove that the plaintiff acted unreasonably and that reasonable conduct would have reduced or eliminated the loss. Whether the plaintiff acted reasonably is a factual question and it involves a consideration of all of the circumstances: Gilbert v. Bottle, 2011 BCSC 1389 at para. 202.
A failure to mitigate is a defence to the amount of damages that the defendant is obligated to pay: Janiak v. Ippolito, [1985] 1 S.C.R. 146 at para. 36.”
Facts of the Plaintiff
- He was not an active person
- Work activities did include some physical work
- Described as obese and gaining weight
- Physiotherapy was recommended
- Home exercise program was recommended
- All recommendations were not followed
- Sporadic attempt at yoga and badminton
- Minor use of treadmill and elliptical machines
- Odd hikes with his family, and walks twice per month
- Plaintiff’s evidence was “he was too tired after work”
- Sought 4 months off work / travelled to Vietnam for treatment without informing his doctors
The Conclusion
I agree with the defence that the evidence supports that Mr. Nguyen’s actions show a pattern of only actively seeking out passive treatments. I have no hesitation in finding that he acted unreasonably in eschewing the recommended treatments of both Drs. Lee and Wee.
In addition, I find that the medical evidence and even Mr. Nguyen’s own evidence supports that, on a balance of probabilities, he would have shown more and more rapid improvement in his condition had these exercise and stretching programs been undertaken. He avoided these activities which, while perhaps more painful at first, would likely have resulted in a quicker and more effective recovery than what he experienced. Mr. Nguyen himself confirmed that he did improve when he was actively doing his physiotherapy and to some extent, trying the exercises and stretching, as confirmed in Dr. Lee’s note from April 2013. In addition, Dr. Lee stated that Mr. Nguyen’s recovery could be delayed by the failure to adhere to the exercise and stretching program.
The defence sought a 15 – 20% deduction. The Court concluded that a 10% deduction was reasonable.
The following cases were referenced by the defence, all of which offered a deduction for failure to mitigate:
Latuszek v. Bel-Air Taxi (1992) Ltd., 2009 BCSC 798 at paras. 84-86; the plaintiff had not prioritized his recovery, had not regularly exercised and did not try several of the recommended treatments. His non-pecuniary damages award was reduced by 40%;
Maltese v. Pratap, 2014 BCSC 18 at paras. 51-61, 101: the plaintiff failed to engage in physiotherapy and an exercise program. The medical evidence taken as a whole established that there would have been a significant improvement to his condition had he undertaken the recommended treatment. The plaintiff’s non-pecuniary damages, past wage loss, loss of earning capacity and loss of housekeeping capacity awards were reduced by 30%;
Salzmann (Litigation Guardian of) v. Bohmer, 2009 BCSC 1586 at paras. 12, 20-24: various specialists in physical medicine recommended that the plaintiff pursue a structured exercise program. She was told that her symptoms would not improve without fitness and conditioning. There was no evidence that the plaintiff participated in an exercise program. Her non-pecuniary damages, loss of earning capacity and special damages awards were reduced by 20%; and
Tayler v. Loney, 2009 BCSC 742 at paras. 74-83: the experts agreed that active rehabilitation was the best therapy for the plaintiff’s ongoing symptoms. She started a course of active rehabilitation, but stopped and did not continue. The plaintiff was found to have failed to mitigate by discontinuing the active rehabilitation program. Her award for non-pecuniary damages was reduced by 15% and her award for loss of earning capacity was reduced by 50%.
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