What is the duty to mitigate and how can that affect your claim personal injury claim?

The duty to mitigate was dealt with in a recent Supreme Court of British Columbia case:


This case dealt with a 57 year old construction worker who sustained various soft tissue and psychological injuries in a motor vehicle accident. His total award was reduced by 15% (on the major heads of damage). This may not seem like a lot but given that his total award was over $200,000, the plaintiff in this case lost out on over $30,000.

The duty to mitigate is the duty placed on all plaintiffs to make reasonable efforts to limit their own losses. In this specific case, the plaintiff’s doctors had recommended that he have physiotherapy treatments and attend counseling. The plaintiff had taken a few chiropractic treatments and a single counseling session but had made no effort to seek additional therapy of any kind. The presiding judge stated:

“The picture that emerges is one of a plaintiff who has taken virtually no personal responsibility for pursuing treatment or seeking to improve his physical, psychological and cognitive condition. I do not accept that he was unaware of the treatment recommendations. The fact is that he did seek some chiropractic treatment but it was sporadic and he did not follow up. Similarly, he did seek counselling from Dr. Weibelzahl but stopped after one session. His explanation that he was too tired to go is insufficient and there is no evidence that he sought alternate arrangements.

I am satisfied that Mr. Benson acted unreasonably by failing to pursue the treatment recommended by the medical professionals. I am also satisfied that his condition would have improved with proper treatment. On this point, each of Dr. Viljoen, Dr. Adrian and Dr. Learn testified to the benefit of early treatment. None however went so far as to suggest that earlier treatment would have cured Mr. Benson’s problems.”

In this case, attending a few extra treatments may have been enough to squash the defendant’s mitigation argument. Not only does attending proper treatment have the effect of evading any mitigation arguments but it can change the way the courts perceive your evidence as a whole; attending proper treatment can mean the difference in being seen as stoic or a “malingerer”. More importantly, it can also help you recover from your injuries.

physiotherapy 1

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