Failure to Mitigate
Failure to mitigate is a common defence advanced by Defendants in personal injury lawsuits. This defence argues that the Plaintiff failed to take reasonable steps to minimize the impact of his or her injuries and that the Defendant is therefore not responsible for losses than the Plaintiff could have avoided by acting reasonably. In other words, the Defendant argues that, while the Plaintiff may have suffered injuries, he or she failed to take reasonable steps to recover and that the damages payable by the Defendant should be reduced on that basis.
If the court accepts that the Plaintiff failed to act reasonably with respect to taking steps aimed at recovery, the court may decide to reduce the Plaintiff’s entitlement to damages on that basis. The court will consider what position the Plaintiff would have been in had he or she acted reasonably, and award damages on that basis, as opposed to awarding damages based on the Plaintiff’s actual circumstances. For example, if an individual involved in a motor vehicle accident fails to attend for physiotherapy after the accident, and subsequently develops chronic back pain, the court may consider what impact physiotherapy would have had on the Plaintiff’s recovery. If the court determines that physiotherapy would have resolved the Plaintiff’s injuries within one year, the court may decide that the Plaintiff failed to mitigate his or her losses and award damages for one year of pain and limitations, as opposed to awarding damages for chronic pain.
When a Defendant advances a failure to mitigate argument, the Defendant bears the burden of proving that the Plaintiff failed to act reasonably. In other words, if the Defendant wishes to reduce the Plaintiff’s entitlement to damages on a failure to mitigate basis, the Defendant must prove, on a balance of probabilities, that the Plaintiff failed to act reasonably. The Defendant must also prove, on a balance of probabilities, that the Plaintiff’s failure to act reasonably contributed to the Plaintiff’s ongoing pain and injuries. In Costello v Calgary (City), 209 AR 1, the Alberta Court of Appeal held that the court will not allow the defendant to be overly critical of the plaintiff in discharging the burden of proof. The duty to mitigate does not always require the plaintiff to take immediate action. The plaintiff is required only to act reasonably in the circumstances.
In assessing a failure to mitigate argument, the court will consider all of the relevant circumstances and make a determination as to whether or not the Plaintiff acted reasonably. The plaintiff is not expected to incur great expense or inconvenience or undertake unreasonable risk in attempting to mitigate. In Forsberg v Naidoo, 2011 ABQB 252, the court held that choices made by the plaintiff during mitigation are evaluated with the knowledge possessed by the plaintiff at the time and not with the benefit of hindsight.
Failure to mitigate arguments can take several different forms, however the most common arguments are that the Plaintiff failed to attend for appropriate treatment, or that the Plaintiff failed to follow the directions of healthcare professionals. As mentioned above, courts will consider all relevant circumstances in assessing whether the Plaintiff acted reasonably.
If you suffer injury as a result of someone’s wrongdoing, and are considering pursuing legal action, it is important that you follow the advice of healthcare professionals and attend for appropriate treatment. By doing so, you can minimize the possibility of your claim being devalued by means of a failure to mitigate defence.
If you think you have a potential claim and would like to know more about mitigation, you can contact one of our lawyers here.
By Ian Miller