Carfra Lawton LLP | Victoria BC

Doctor knows best – a new high water mark for failure to mitigate

In the recent case of Mullens v. Toor 2016 BCSC 1645 the court reduced the plaintiff’s damages by 50% for failure to mitigate.

The plaintiff was injured on her way home from work and suffered modest injuries. At trial, nearly 4 years later, she had not returned to work.

The court found that the plaintiff failed to mitigate her damages in relation to her medical treatment and by failing to return to work. Moreover, better engagement with the recommended exercise program would have sped recovery and increased the chances of a successful return to work. The evidence showed that the plaintiff should have attempted a return to work within one year of the accident. At that point, a return to work would have benefited her psychologically and mitigated her pecuniary losses. The court rejected the plaintiff’s argument that her refusal to return to work and obtain full psychiatric treatment was rooted in her injuries.

The plaintiff’s past wage loss was reduced by 50% as most of the loss could have been avoided had she returned to work. Similarly, her loss of future earnings/capacity and non-pecuniary damages awards were reduced by 50% for failure to mitigate.

The court is showing a trend toward significant reductions in appropriate cases and this case stands as the new high water mark for a reduction for failure to mitigate.

Case law summary by Amy Coad