Mitigation For Failure to Exercise

Discharged onus on the Defendant to establish the existence of a failure to mitigate on a balance of probabilities

In SCHMIDT V. HAWKINS, 2010 BCSC 1154 (“SCHMIDT”), a judgment released on August 16, 2010, the Court addressed the issue of mitigation and the nature of the Plaintiff’s duty to follow medical advice (at paragraphs 142-146). The Court began its analysis by noting that the onus was on the Defendant to establish the existence of a failure to mitigate on a balance of probabilities. However, the evidence in this case allowed the Court to quickly conclude that this burden had been discharged.

The Court found that “all the physicians who examined or treated Mrs. Schmidt recommended that Mrs. Schmidt involve herself in swim or involve herself in a gym program or both”. However, it appears that the Plaintiff “resisted this advice until she took out a six-month membership at the YMCA-YWCA just before the trial, which was not used up to its expiry date”.

The reasons for judgment contain the following terse summation:

I asked Mrs. Schmidt if she could swim. She stated she could. She volunteered that she did not like swimming or going to the gym.

Implicit in Hyslop J.’s inquiry as to the Plaintiff’s ability to swim is the idea that a lack of desire or enthusiasm is not enough to avoid a finding of failure to mitigate when a recommended treatment is within the Plaintiff’s capabilities.

The very succinct analysis of the failure to mitigate in SCHMIDT suggests that courts will not be impressed where there is no explanation advanced for not pursuing a recommended form of rehabilitation beyond a general dislike of a certain activity. As the Court awarded $45,000 in non-pecuniary damages and provided for a 15% reduction for failure to mitigate, the Plaintiff’s decision not to explore an aquatic path to recovery ultimately resulted in a not insignificant loss of $6,750.

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