Court Of Appeal Upholds 50% Failure To Mitigate Reduction

In Mullens v. Toor, the Plaintiff was injured in a motor vehicle accident, and consequently sued for various types of damages, including non-pecuniary, income loss, diminished earning capacity, and the cost of future care.


At trial, the trial judge awarded damages in all these categories, however applied a 50% reduction to all such categories for the Plaintiff’s failure to mitigate her damages.


Mitigation is a legal obligation of a claimant in an ICBC injury claim. The claimant is expected to take active, reasonable steps in the recovery process to mitigate (lessen or reduce) damages and losses. Failure to mitigate can result in a reduction in the amount of damages awarded by a Court. In order for ICBC’S lawyer to be successful in an argument that a claimant did not mitigate damages, it would need to be shown that the claimant acted unreasonably in not following the advice of doctors, and it would also need to be shown to what extent, if any, that the claimant’s injuries would have been reduced had he or she acted reasonably. A failure to follow the advice of treatment providers is a common allegation made by ICBC’S lawyers when advancing a failure to mitigate argument in Court.


In the case at bar, the Plaintiff received awards by the Court for non-pecuniary damages, as well as diminished earning capacity, however the trial judge reduced such awards by 50% for the Plaintiff not following the advice of her doctors more diligently.


Counsel for the Plaintiff appealed, arguing that the failure to mitigate reduction should only apply to the non-pecuniary component, and not the diminished earning capacity component. Counsel for the Plaintiff further argued that the failure to mitigate argument advanced by ICBC’S lawyer only pertained to past wage loss.


The Court of Appeal dismissed the Plaintiff’s appeal, stating that the arguments made at trial by the Defendant pertaining to a failure to mitigate past loss of income were logically connected to other heads of damage. Further, the Court noted that the mitigation issue was generally explored in the evidence and had also been generally plead in the Response to the Notice of Civil Claim.


[53]      Ms. Mullens says that the respondents pleaded only a boilerplate failure to mitigate, and specifically argued only that past loss of income should be reduced by 50%. However, the judge also reduced his awards for non-pecuniary damages, loss of earning capacity, loss of pension and deferred profit sharing by 50% and the future cost of care by 10% because of a failure to mitigate.


[59]    The issue of mitigation was both specifically pleaded and extensively explored at trial. Experts testified to the mental health benefits of returning to work and the benefits of comprehensive psychiatric treatment. Counsel raised a failure to mitigate in general terms during closing submissions, and made specific reference to the benefits of returning to work, such as improved mental health. The specific arguments made with respect to a failure to mitigate past loss of income were logically connected to the other heads of damage claimed.

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