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Failure to Mitigate Demands Evidence

I’m terrified of needles.  Do I have to follow the recommendations of my doctors that I get some therapies involving needles?  Will my settlement be reduced if I don’t do it?

In the recent case Dhillon v Singer (2017 BCSC 414), the plaintiff had been injured in three collisions.  In the course of her treatment for those injuries, she had seen a number of doctors, many of whom had made recommendations for her to try various forms of treatment.  While the plaintiff had indeed tried quite a few different treatments, there were a few recommendations that she hadn’t followed through with.  In particular, it was alleged that she hadn’t tried or been fully compliant with the following:

  1. Her treating phyiatrist and treating orthopedic surgeon’s recommendation that she undergo cortisone injections (due to a fear of needles);
  2. Another physiatrist’s recommendation that she try trigger point therapy (again due to a fear of needles);
  3. Her home exercises, as prescribed by her kinesiologist;
  4. The defence expert’s recommendation that she maintain “as active a lifestyle as possible”; and
  5. The plaintiff expert’s recommendation that she “continue with her home exercise program.”

At trial, the defendants argued that Ms. Dhillon’s failure to undergo / comply with the treatments or regimens meant she had failed to mitigate her damages – that is, she had failed to take reasonable steps to improve her condition.  Justice Fleming declined find a failure to mitigate, in large part because the defendants were relying on hearsay to prove a lack of mitigation:

[145]     The defendants argue the plaintiff’s non-pecuniary damage award should be reduced by 10–15% for failing to undergo recommended injections, and not participating fully in various therapies and active rehabilitation, including home exercises. It is well settled that a plaintiff has a positive duty to act reasonably in mitigating her losses. However once a defendant is found liable for a plaintiff’s injuries, he must prove she acted unreasonably by “eschewing” medical advice recommending treatment and the extent to which her damages would have been reduced had she acted reasonably: Chiu v. Chiu, 2002 BCCA 618 at para. 57.

[146]     The defendants rely primarily upon clinical records to prove the plaintiff failed to mitigate. […] The records do not discuss any potential risks arising from the injections.

[147]     Further, there is no evidence to support the second branch of the test. The statements of opinion contained in the clinical records of Dr. Dhawan and the Change Pain Clinic regarding the expected benefit of the injections are not admissible for their truth. In these circumstances, I am not able to conclude that Mrs. Dhillon acted unreasonably by failing to comply with the recommended treatment.

[148]     The defendants also rely upon clinical records to establish the plaintiff’s inadequate participation in physical therapy and active rehabilitation including poor compliance with home exercises at various times. The plaintiff admitted there were periods when she did not perform home exercises mainly because her pain was severe. Given the inconsistencies between her evidence on this issue and various entries in the clinical records, as well as her very deconditioned state as observed by the kinesiologist in November 2014, I accept that she was probably much less compliant with home exercises after the third accident, in particular, than she acknowledged in her testimony. However, there is no admissible opinion evidence regarding the extent to which her pain symptoms would have improved with better compliance. Sparse entries in clinical records indicating the plaintiff reported some reduction in pain with home exercise are not adequate.

[149]     The same is true of Dr. Leith’s recommendation that the plaintiff maintain, “as active a lifestyle as possible,” which is also not specific enough to measure compliance. Instead of expressing an opinion about how a particular level or form of exercise would reduce Mrs. Dhillon’s symptoms, he writes, “[h]opefully with time her symptoms will settle completely.” I note that in his third report Dr. Hershler recommended the plaintiff continue physiotherapy and, “continue following a self-monitored exercise program at home, as directed by a physiotherapist”. He also provided no opinion regarding the expected result of the home exercise program.

[150]     I conclude therefore the mitigation defence has not been proven.

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