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Mitigation and Losses

What if I’m too scared to undergo surgery?  Will my total phobia excuse me from consequences of my failure to mitigate?

In today’s judgment summary, we’re looking back at Supreme Court Case from 1985 called Janiak v Ippolito [1985] 1 SCR 146.  This case is still the leading authority on mitigation in the context of a plaintiff who refuses a recommended treatment.  Mr. Ippolito had sustained a back injury after a rear-end collision that left him unable to return to his work as a crane operator.

Several specialists – who testified at trial – had recommended that the plaintiff undergo a surgical procedure in which the problem disc would be excised and the surrounding vertebrae would be fused.  The likelihood of success was 70%, and if the surgery was successful, Mr. Ippolito would likely have had almost 100% recovery, and could have returned to work.  Unfortunately, the plaintiff was deeply terrified of undergoing any kind of surgery and – absent an absolute guarantee of success – refused to undergo the operation.  Accordingly, his back symptoms continued to be severe and he continued to be unable to work.

Writing for a unaninmous court, Justice Wilson noted that the overall question in assessing a failure to mitigate is to look at whether the plaintiff’s decision not to undergo a particular medical or surgical treatment was reasonable.

In determining Mr. Ippolito’s reasonableness, the Court opined that a terror of surgery can amount to a psychological ‘thin skull’ – that is, an attribute of the plaintiff’s that (1) pre-existed the tortious act and (2) made the plaintiff more susceptible to the damage or loss in question.  They wrote that this kind of ‘psychological thin skull’ can be found to exist only where the plaintiff truly does not have the capacity to overcome the barrier:

24      The other element that has to be considered in determining whether the objective test of reasonableness applies to the decision made by the alleged thin-skulled plaintiff is the nature of the pre-existing psychological infirmity. It is evident that not every pre-existing state of mind can be said to amount to a psychological thin skull. It seems to me that the line must be drawn between those plaintiffs who are capable of making a rational decision regarding their own care and those who, due to some pre-existing psychological condition, are not capable of making such a decision. As pointed out by Professor Fleming, a plaintiff cannot by making an unreasonable decision in regard to his own medical treatment “unload upon the defendant the consequences of his own stupidity or irrational scruples”: Fleming, The Law of Torts (6th ed., 1983), p. 226. Accordingly, non-pathological but distinctive subjective attributes of the plaintiff’s personality and mental composition are ignored in favour of an objective assessment of the reasonableness of his choice. So long as he is capable of choice the assumption of tort damages theory must be that he himself assumes the cost of any unreasonable decision. On the other hand, if due to some pre-existing psychological condition he is incapable of making a choice at all, then he should be treated as falling within the thin-skull category and should not be made to bear the cost once it is established that he has been wrongfully injured.

25      I believe that Lord Justice Singleton’s concern in Marcroft v. Scruttons, supra, stemmed from his doubt as to whether the plaintiff in that case was capable of making a rational decision. Not only that, there was some indication in the medical evidence that his incapacity may have been itself a consequence of the trauma induced by the accident. If this is so, it would appear manifestly unjust to cut off his recovery for failure to mitigate his damages through a rational decision as to treatment. The reasons of Lord Justice Denning are even more baffling. He attributes the plaintiff’s traumatic state after the accident to a pre-existing constitutional weakness and says it rendered the plaintiff incapable of making reasonable decisions. Yet he concluded that this was a subjective factor that could not be considered. This would appear to be carrying the objective test too far in that it overrides the “thin skull” principle altogether.

26      The position in the United States would appear to be that a great number of personal attributes falling short of a constitutional incapacity to act reasonably can be taken into account in evaluating the plaintiff’s post-injury behaviour. This position is best summed up in Dobbs, Law of Remedies (1973), p. 580 as follows:

In such cases the courts have spoken of ‘the reasonable and prudent man’ or ‘reasonable care’ by the plaintiff as a test, but this term is probably too narrow. Personal preferences of the plaintiff, personal finances of the plaintiff, and even irrational fears of the plaintiff are given due weight in deciding what he is expected to do to minimize damages. The standard, then, is not so much the objective standard of the hypothetical reasonable man as it is the subjective standard based on what can be reasonably expected of the particular plaintiff.

In their text on Personal Injury Damages in Canada (1981), Professors Cooper-Stephenson and Saunders point out that no clear position has emerged from the Canadian jurisprudence in this area although cases such as Elloway, supra, and McGrath, supra, suggest that a plaintiff in Canada may not be held to an objective standard of reasonableness which it is beyond his capacity to attain. This position would appear to most appropriately complement Fleming’s assertion that where a plaintiff does not suffer from a constitutional incapacity to act reasonably he cannot make the defendant bear the burden of his unreasonable behaviour. Thus, the analytic focus in each case is on the capacity of the plaintiff to make a reasonable choice.

The court went on to discuss the reasonableness of refusing treatment in the face of conflicting medical opinions, the onus of proof of reasonableness, and the consequences of a failure to mitigate before finally dismissing the appeal.

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