What Is Mitigation? Why Does It Matter?

In spring, 2012, Mandy (name changed) was hurt in a car accident through no fault of her own. She suffered some serious injuries, including soft tissue injuries to her neck and spine causing her neck and back pain. Her most serious injuries were psychological though, including depression, anxiety and chronic pain syndrome, still unresolved at the time of the court hearing years later.

The trial court had awarded her compensation for pain and suffering, loss of past earnings and loss of future earning capacity. But then it cut that award in half; the B.C. Court of Appeal agreed with this decision. Here’s why.

You may have heard that there’s a “duty to mitigate” your losses or injuries caused by someone else if you’re hurt in a car (or other) accident. That duty exists even if the accident was the other side’s fault.

In this situation, you may be entitled to compensation from the at-fault vehicle driver, owner or their insurer (typically ICBC). The compensation aims to put you in the same financial position you would have been in if the accident hadn’t happened. But you can’t just sit idly by and look to the defendant to make you whole financially. You have to take reasonable steps to “mitigate” – to reduce – the losses you sustained. That common sense approach is one our courts have long taken.

So if the defence can prove your losses would have been less if you had taken appropriate action, your compensation may be reduced by the court. The reasoning is that the defendant shouldn’t have to pay for your failure to reduce your losses.

In Mandy’s case, Mandy was employed in a junior managerial position at a bank at the time of the accident.

Her bank employer knew it had to accommodate her medical condition and was keen to have her back. But Mandy felt due to her condition she couldn’t go back and needed a career change. Her plan was to become a counsellor. This would mean some four to five years of study, and then likely a lower salary than if she returned to work at the bank and over time progressed to a more senior level. She also argued she would likely never be able to work full-time again.

The court didn’t agree, however.

Mandy had adamantly refused repeated medical recommendations that she should get treatment from a psychiatrist and take anti-depressant medications as advised. Her reluctance stemmed partly from her concern that she’d be stigmatized for having mental problems. The court rejected this as a valid excuse in this modern day and age. There was also medical evidence that she would benefit from the recommended psychiatric treatment and ultimately be able to return to full-time work.

Because Mandy didn’t take reasonable steps to mitigate her losses (e.g., past and future wage losses), the trial court cut her compensation award significantly. The appeal court saw no valid reason to change this.

Written by Janice and George Mucalov, LL.B.s with contribution by COBBETT & COTTON. This column provides information only and must not be relied on for legal advice. Please contact COBBETT & COTTON for legal advice concerning your particular case. Names of the parties in reported cases have been changed or removed to protect their identity. Lawyer Janice Mucalov is an award-winning legal writer. “You and the Law” is a registered trade-mark. ©Janice and George Mucalov.

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