Carfra Lawton LLP | Victoria BC

Plaintiff Damages Reduced by 30% for Failure to Mitigate

The reasons in Pond v Bucsis 2013 BCSC 2001 were recently published. This BCSC decision stands in stark contrast to Smith v. Both.  The court held the plaintiff Pond had failed to mitigate and applied a 30% reduction of damages.

The accident was minor:  the defendant backed into the plaintiff vehicle, in a parking lot.  There was evidence of a lack of concern by the plaintiff about her role in her own recovery.

The plaintiff failed to mitigate her damages in several ways: not filling some prescriptions; not using some prescribed medication; not discussing her concerns with that prescribed medication with her doctors; increasing consumption of pain medication when advised to reduce that consumption; not stretching and exercising; not taking physiotherapy and claiming it was because she could not afford it despite ICBC having approved further treatments.

The court held it was unreasonable for the plaintiff not to follow the recommended treatment and it was more likely than not that the plaintiff would have experienced a reduction in symptoms and an increase in functionality had she followed those recommendations.

Case summary prepared by: Cathy Stoker