Carfra Lawton LLP | Victoria BC

Plaintiff award reduced by 20% for failure to mitigate (by not reading her own expert reports)

In Rahimi v Ma 2014 BCSC 710 the 32 year-old plaintiff sustained injuries to her neck, back, and shoulders in a rear-end collision. She claimed her condition remained largely unchanged from the time of the collision.

The defendant alleged the plaintiff failed to mitigate by not reading reports available to her. The plaintiff knew her lawyer had medical reports, including a report from a physiatrist which made treatment recommendations. The plaintiff neither ask for copies of the reports, nor read them.

Justice Voith found that the plaintiff failed to mitigate and reduced non-pecuniary damages by 20%. The Judge found that a reasonable person in the plaintiff’s circumstances would have asked about her physiatrist’s care recommendations. This case represents an extension to the typical failure to mitigate argument. The issue was usually framed as whether the plaintiff acted unreasonably in failing to follow recommended treatment. This case imposes a positive obligation on the plaintiff to reasonably seek assistance or guidance.

Mr. Justice Voith decided that there was enough evidence to found a reasonable inference that had the care recommendations been followed the plaintiff’s condition would have improved. This is a different analysis than that provided either by Madam Justice Russell in Smith v Both, who found that the evidence required needed to show that the treatment “would have” reduced the symptoms, or by Mr. Justice Barrow in Pond v Bucsis, who found that the evidence persuaded him that it was “more likely than not” that the treatment “would have” reduced the symptoms.

Case summary by: Brian Hoffmann