Carfra Lawton LLP | Victoria BC

Problems with Proving a Failure to Mitigate

The reasons in Smith v Both 2013 BCSC 1995 recently indicated some difficulties with proving a failure to mitigate. In that case, Madam Justice Russell did not accept the defence argument that the plaintiff failed to mitigate her damages. The plaintiff alleged soft tissue injuries from a rear end motor vehicle accident. There was no damage to the defendant’s vehicle. The plaintiff did not repair the damage to her vehicle: an imprint of the defendant’s license plate bolt.

More than a year after the accident the plaintiff saw Dr. Hershler, a physiatrist, who recommended a physiotherapy and rehabilitation program. Instead, the plaintiff continued massage therapy which provided little relief. Nine months later she tried chiropractic therapy which provided only temporary relief. Some two and a half years after the accident the plaintiff took Dr. Hershler’s advice and attended a physiotherapy and rehabilitation program, which helped her with her exercise program and provided significant relief from her symptoms.

The defendant was required to prove (1) that the plaintiff acted unreasonably in ignoring the recommended treatment, and (2) that the plaintiff’s damages would have been reduced if she had acted reasonably. The court found that the plaintiff did not ignore Dr. Hershler’s recommendation, but did eventually follow it. The eighteen month delay was found not to be unreasonable. The court was not satisfied that beginning an exercise rehabilitation program immediately would have reduced the plaintiff’s symptoms.

This case highlights the technical and difficult nature of proving mitigation of damages. Despite the recommended treatment being far more beneficial than the passive therapies the plaintiff chose, the court would not accept that an eighteen month delay was unreasonable and would not infer that the relief from the treatment would have occurred at the earlier time if the recommendation had been accepted immediately.

Case summary prepared by: Giles Deshon