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Failure to Mitigate

Is there an obligation that plaintiffs follow all treatment recommendations?  What if the recommendation was optional, and the plaintiff’s actual treatment was effective?

The case of Jamal v. Kemery-Higgins (2017 BCSC 213) was summarized last week on the point of obtaining a medical opinion during trial, rather than in a report. This summary looks at the defence allegation that the plaintiff failed to mitigate, i.e. that she failed to minimize her claim by doing everything within reason to get her life back to normal (which the law requires).

The defence asked the judge to reduced the plaintiff’s award in recognition that she failed to pursue recommended psychotherapy. They argued that if she had followed through with this care, her symptoms would have improved (and her damages would have been reduced).

In rejecting this argument, Madam Justice Morellato summarized the law, and concluded (on the facts) that the plaintiff was not unreasonable in her course of action:

[63]         Counsel for the defendants submit that Ms. Jamal failed to mitigate her loss by not following the psychiatric referral recommended by Dr. Bayfield in 2012 and, accordingly, that her non-pecuniary damages ought to be reduced by 20% to $72,000.  In response, counsel for Ms. Jamal submit the defendants must prove that Ms. Jamal acted unreasonably in not pursuing the recommended treatment and, further, that the her damages would have been reduced had she followed the recommended treatment.

[64]         While the duty to mitigate rests on the personal injury plaintiff, the defendant bears the onus of proving: 1) the plaintiff acted unreasonably in not following the recommended treatment; and 2) the extent to which the plaintiff’s loss would have been reduced if the plaintiff had acted reasonably: see Chiu (Guardian ad litem of) v. Chiu, 2002 BCCA 618 at para. 57.  I have concluded that Ms. Jamal did not act unreasonably in not pursuing the options for therapeutic counselling in January of 2012.

[65]         Dr. Bayfield’s testimony was very clear that she considered the referrals to Rapid Access Psychiatric Services and the Bounce Back program to be optional, and that Ms. Jamal was compliant with her treatment recommendation at all times.  Dr. Bayfield was also comfortable with Ms. Jamal’s choice in 2012 to take anti-depressants without psychotherapy and noted this treatment regime was effective at that juncture.  Accordingly, I find that there was no failure to mitigate.