Those who have suffered a serious physical injury due to someone else’s actions may be eligible for compensation. If the other person is legally responsible, the injured person may be entitled to a monetary award to help them move forward and cover things like lost income, future earning capacity, and pain and suffering. 

However, some things can reduce the amount of compensation payable. For example, suppose the plaintiff is partially at fault for their injuries. In that case, they may be found to be contributorily negligent, in which case the compensation amount is reduced proportionally to the degree that they were at fault. A further example would be if the plaintiff failed to take reasonable steps to mitigate their losses, which is the topic of this article.

What is the duty to mitigate?

The duty to mitigate is a general principle that applies in contract and tort law, under which plaintiffs must take all reasonable steps to avoid losses. While plaintiffs that have been injured can recover compensation from the responsible party for the losses they have suffered, they cannot claim in respect of losses that could have been avoided had they acted reasonably after the accident.

Why is there a duty to mitigate?

The obligation of plaintiffs to mitigate their losses is based on fairness grounds – it should not be possible to claim for reasonably avoidable losses. However, plaintiffs need only take reasonable steps to avoid their losses and are not required to do every conceivable thing to avoid things such as lost income after suffering a personal injury.

Who bears the burden of proof?

The plaintiff bears the onus of proving that they have suffered damage, for example, due to someone else’s negligent acts or omissions, and the amount of that damage. However, the burden of proof switches to the defendant if they claim that the plaintiff could have and should have mitigated their losses. 

Courts have tended to be generous towards plaintiffs regarding the duty to mitigate. On the other hand, defendants have been required to put forward strong evidence of a failure to mitigate to discharge their burden and prove to the court that the plaintiff has not taken reasonable steps to mitigate their losses.

Finally, the defendant can only point to the plaintiff’s post-accident conduct when establishing a failure to mitigate. Events that happened before the loss arose are not relevant.

What does the duty to mitigate involve in a personal injury context?

In the personal injury context, defendants sometimes argue that plaintiffs have failed to mitigate their loss because they did not seek medical treatment or ignored treatment recommended by a doctor. Treatment in this context can include surgery or procedures, taking medication and/or undergoing therapy sessions.

Unreasonably refusing medical treatment can lead to additional losses, for example, a slower recovery from injury which may result in an inability to work for a longer period, so a higher lost income claim.

Courts have required defendants to prove the following two matters to show that the plaintiff has failed to mitigate their losses by not undertaking treatment recommended by a doctor:

• the plaintiff acted unreasonably in refusing to undertake the recommended treatment; and
• there was a real and substantial possibility that the plaintiff’s loss would have been reduced, to some extent, if they had acted reasonably and proceeded with the treatment.

What if the plaintiff has been given conflicting medical advice?

A plaintiff need not take all possible steps to reduce their loss and is only bound to act reasonably and prudently. 

An issue that occasionally arises is what the plaintiff must do when they have received conflicting medical opinions from different doctors as to whether a treatment will help alleviate their condition. 

The Supreme Court of Canada said in the case of Janiak v Ippolito:

“It would appear from the authorities that as long as a plaintiff follows any one of several courses of treatment recommended by the medical advisers he consults he should not be said to have acted unreasonably.”

The Supreme Court also said that the reasonableness of the plaintiff’s decision to undergo the recommended treatment is assessed objectively (that is, from the standpoint of the reasonable person), provided that the plaintiff can make a choice.

What can plaintiffs do to help mitigate their losses?

Plaintiffs may mitigate their losses by following the treatment recommended by their medical professionals. Refusing to do so may have negative consequences for a personal injury claim if the refusal is unreasonable. Returning to employment once physically fit and cleared for work is also likely to assist your claim.

What is the consequence for plaintiffs of failing to mitigate their losses?

If the plaintiff did not take reasonable steps to mitigate their losses, compensation for losses that could have been avoided would not be available. 

Depending on the particular circumstances, compensation could be reduced in respect of the loss rather than eliminated. For example, if a plaintiff unreasonably rejected a surgical treatment with less than a 100% chance of success, compensation for loss of income may be awarded in a lower amount to reflect that a positive outcome following surgery was not guaranteed. 

Contact the Personal Injury Lawyers at Cuming & Gillespie LLP for Advice on Personal Injury Claims 

The personal injury lawyers at Cuming & Gillespie LLP in Calgary understand the importance of obtaining compensation in allowing their injured clients to get back on track. We can guide you through the entire process of making a compensation claim, including what you should do to fulfill the duty to mitigate your losses. Call us today at 403-571-0555 or online to book an appointment for a confidential consultation.