Sustaining a serious injury in an accident can be physically, mentally, and financially draining. If the personal injury was caused by someone else, an injured individual might have good prospects in a compensation claim.

One issue that can arise is determining whether the injured plaintiff has done all they could to avoid the loss they suffered because of the accident. For example, if the individual has not pursued treatment suggested by a doctor, they might not recover as quickly, and the defendant could claim that this has resulted in an excessive claim for compensation.

This article reviews the duty of plaintiffs in personal injury actions to take reasonable steps to limit their loss, which is known as the duty to mitigate. We also review a recent decision of the Supreme Court of British Columbia, in which the defendants claimed that the plaintiff failed to mitigate her loss by missing appointments and failing to take prescribed medication.

The plaintiff’s duty to take reasonable steps to limit their loss

Compensation may be available in a negligence claim if the plaintiff can show that the defendant owed them a duty of care, that the defendant failed to act in the manner of a reasonable and prudent person, and the defendant’s actions caused the injury suffered by the plaintiff.

Compensation may be available for various types of losses caused by the accident, including pain and suffering, lost income, loss of future earning capacity and the cost of future care. However, the plaintiff is under a duty to take reasonable steps to limit their loss. If they could have avoided all or a part of the loss by taking reasonable steps, the amount of compensation payable may be reduced.

The defendant needs to prove a failure to mitigate by the plaintiff

The defendant bears the onus of proving that the plaintiff has failed to mitigate their loss. In a case where the plaintiff has not undertaken medical treatment recommended by a doctor, the defendant needs to prove two aspects:

• the plaintiff acted unreasonably in failing to proceed with the recommended treatment; and
• the plaintiff’s loss would have been reduced, to some extent, if they had acted reasonably.

In relation to the second point, the defendant must show that there was a real and substantial possibility that part of the loss could have been avoided by reasonably following the recommended treatment.

Plaintiff was injured in two car accidents

In O’Grady v Virk, the plaintiff was involved in a series of unfortunate motor vehicle accidents. The plaintiff’s vehicle was struck twice in Maple Ridge, first in September 2017 and then again in May 2018. She was not at fault for either accident and the other drivers admitted liability.

The first accident resulted in a six-hour stint in the emergency ward. The plaintiff experienced pain in her neck and back, anxiety from being in a car, and frequent migraines three to four times per week and lasted for four or five hours.

The plaintiff hit her head on the passenger side window during the second accident. She was bleeding and momentarily lost consciousness. Scans at the hospital revealed that she had sustained a concussion and her neck and back pain subsequently increased. Further, her anxiety and depression worsened.

Defendants argued that the plaintiff failed to mitigate her damages

The defendants disputed the amount of compensation claimed by the plaintiff for the injuries she sustained. They made several arguments, including that the accidents were not the sole cause of the plaintiff’s symptoms because she had pre-existing medical conditions.

Justice Gibb-Carsley rejected this claim, being satisfied due to the expert medical evidence presented in the case that the accidents were the cause of the plaintiff’s current pain symptoms.

The defendants also argued that the plaintiff failed to mitigate her losses. They pointed to the following events:

• The plaintiff missed some therapy sessions that had been scheduled with family doctors and specialists; and
• The plaintiff stopped taking her prescribed antidepressant medication when she became pregnant after the accidents and while she was subsequently breastfeeding.

Plaintiff stated that she took reasonable steps to treat her symptoms

The plaintiff told the Court that she had to stop working after the first accident due to the pain she was experiencing. This caused financial hardship, which prevented her from having a cell phone, home internet and a vehicle, which made it difficult for her to attend appointments. She decided not to take the antidepressant because she was concerned about its potential impact on the development of her children.

Court found defendants failed to prove that the plaintiff did not mitigate her damages

Justice Gibb-Carsley agreed with the plaintiff that she did not attend the appointments because of circumstances caused by the accidents. The lack of internet, phone and public transport, along with an inability to drive herself due to anxiety, prevented her attendance. She also had difficulty scheduling appointments due to her migraines. His Honour said:

“I do not find it fair or reasonable for the defendants to blame [the plaintiff] for not attending or scheduling appointments when many of the obstacles preventing her from doing so were ultimately the result of the defendants’ actions.”

The Court also decided that it was reasonable for the plaintiff to make decisions regarding her pregnancy that she considered were in the best interests of her children. The plaintiff took reasonable steps to treat her conditions, including meeting with her family doctor, physiotherapist and counsellor.

The Court assessed damages for the plaintiff of approximately $760,000.

Contact Meridian Law Group in Vancouver for Skilled Representation in Personal Injury Claims

The experienced personal injury lawyers at Meridian Law Group in Vancouver work to secure fair compensation for their clients to help them continue with their recovery and move forward. If you have been injured because of someone else’s negligence, you may have grounds to commence a personal injury claim. To learn more about the claims process and speak with a member of our personal injury team, please call 604-687-2277 or contact us online to schedule a consultation.