Carfra Lawton LLP | Victoria BC

40% Reduction in Damages for Failure to Mitigate

In Liu v. Bipinchandra, 2016 BCSC 283, the court reduced damages by 40% for failure to mitigate. The court found that the plaintiff failed to follow virtually any of the treatment recommendations, and unreasonably failed to seek work after the accident.

The plaintiff declined to take medications or attend physiotherapy, chiropractic treatment, psychological counseling and psychiatric assessment prescribed to her because she claimed that they were “too expensive” or would not work. The court found that the expense assertion was not honest as Ms. Liu had paid $100,000 towards the principal amount owing on her home and leased a BMW during the time that she failed to obtain prescribed medications and attend prescribed treatments. The court further found that the plaintiff’s assertion that the treatments would not work was unreasonable.

The court ultimately decided that most, if not all, of Ms. Liu’s conditions would have improved if she had not disregarded the treatment recommendations. The court did not grant a separate adjustment for the failure to seek work but instead applied a global reduction.

Profound failure to mitigate can lead to a significant reduction in damages.

Case law summary by: Amos Comeau