Court Finds No Failure to Mitigate Where Reasonable Efforts Made

Courts must decide if there was a failure to mitigate damage

In the case of FURNESS V. GUEST, 2010 BCSC 974 (“FURNESS”), released on July 12, 2010, the Plaintiff was awarded $40,000 in non-pecuniary damages.

The Plaintiff was struck by a large tractor truck driven by the Defendant after stepping into a crosswalk while the “don’t walk” sign was flashing. Although the amount awarded was ultimately reduced due to contributory negligence, the Court also had to decide whether it was appropriate to reduce the award for a failure to mitigate.

The Defendant alleged that the Plaintiff failed to do the home exercises recommended by his physiotherapist in order to rehabilitate the quadriceps muscles in his right leg. However, the Court noted the fact that the Plaintiff suffered from a “serious pre-existing condition of ankylosing spondylosis and a permanent partial disability in one of his shoulders from a previous injury” (at para. 66). These pre-existing conditions would prove important to the Court’s consideration of any failure to mitigate.

Before reaching its conclusion on whether there was a failure to mitigate, the Court in FURNESS provided a helpful overview of what is required to establish this defence at para. 91:

The onus is on the defendants to prove the essential elements of the defence of failure to mitigate. Each element must be proved on the balance of probabilities, and the essential elements of this defence are:

a)    that a qualified medical expert recommended that the plaintiff undergo a particular form of treatment;

b)    that the plaintiff failed or refused to take the recommended treatment although it was available to him or her; and

c)     that the plaintiff’s refusal or failure was unreasonable, in that if the plaintiff had taken the recommended treatment, there is some likelihood that he or she would have received substantial benefit from it; and the treatment would not expose the plaintiff to significant risk.

See JANIAK V. IPOLITO [1985] 2 S.C.R. 146; CHIU (GUARDIAN AD LITEM OF) V. CHIU 2002 BCCA 618 at paragraph 57.

The Court considered a number of factors in the course of reaching its conclusion that the Plaintiff made “reasonable efforts” to do the recommended exercises and that there was no failure to mitigate. One consideration was that the Plaintiff’s pre-existing conditions made completing the exercises much more difficult than it would have been for someone who did not suffer from such conditions. Another factor was that although weekly physiotherapy appointments were recommended by the Plaintiff’s physiotherapist, these treatments were not approved by ICBC, which meant that the Plaintiff would have had to pay for them himself. The Court found that the Plaintiff did not have the money to pay for these treatments on his own.

The fact that the Court in FURNESS considered the inherent limitations of the Plaintiff, both physical and monetary, in reaching its conclusion that reasonable efforts at rehabilitation were made illustrates how the defence of failure to mitigate can be highly fact-driven and context-dependent.

Interestingly, the Court found that there was a real possibility that if the Plaintiff had continued to do all of his rehabilitation exercises his recovery time would have been reduced. However, the fact that there was no expert medical evidence specifically addressing the tangible results which could have been expected from increased exercise was fatal to the Defendant’s assertion that there was a failure to mitigate.  Although there was evidence that the Plaintiff’s injured right quadriceps was smaller than his left, and that the disability “may have been extended” by the failure to complete the recommended rehabilitation program, this was not sufficient to overcome the various obstacles to an ideal rehabilitation process that the Plaintiff faced. The requirement of there being an “unreasonable” failure to complete a recommended program, along with the need for evidence of “some likelihood” that the unfulfilled portion of the rehabilitation would have benefited the Plaintiff, ultimately precluded any reliance on the defence of failure to mitigate.

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