In most lawsuits, the person starting the lawsuit (the plaintiff), has been wronged, and is claiming compensation or redress for that wrong from the person who has allegedly committed the wrong (the defendant). The defendant may defend the claim by arguing various points, for example, that no wrong was committed, or that someone else is responsible for the wrong, or that the wrong wasn’t as great as the plaintiff says it is, or that the plaintiff made matters worse by not trying to limit the wrong.
This last argument is based on a legal principle, that all plaintiffs are under a duty to “mitigate” their losses. The word “mitigate” means “to lessen in force or intensity; to make less severe.”
In cases involving accidents which injure the plaintiff, the duty to mitigate means that the plaintiff has to try to lessen the impact of the injury. Most often, this means that the plaintiff is under a duty to undergo treatment recommended by his/her treating doctors.
The Supreme Court decision in Janiak v. Ippolito
The leading case on the duty to mitigate in a personal injury claim is the Supreme Court of Canada decision Janiak v. Ippolito  1 S.C.R. 146. In this case, the plaintiff had sustained serious back injuries when he was rear-ended in a car accident. Before the accident, he had been employed as a crane operator. After the accident, he couldn’t return to work. The medical evidence was that the plaintiff had a disc protrusion of the cervical spine (neck). At trial, doctors testified that the recommended course of treatment was for him to undergo surgery which would involve surgical removal of the disc together with a spinal fusion. Based on medical evidence, the trial judge accepted that there was a 70% likelihood that surgery would lead to full recovery so that the plaintiff would be able to return to work. The judge noted that no one could provide the plaintiff with a guarantee of success, and the plaintiff testified that he was very afraid of surgery. Of course, because the plaintiff wasn’t willing to undergo surgery, he continued to be in pain and unable to work. The key issue was whether the plaintiff should have undergone the surgery, and whether the defendant should be responsible for damages related to the plaintiff’s refusal to undergo the surgery.
In trying to answer these questions, the Supreme Court of Canada examined the reasoning behind the duty to mitigate and noted that the primary consideration is a strong reluctance to award compensation where the loss could be avoided. Many of the cases relied on are quite old, as reflected in the language. Here are some excerpts of other cases that the Supreme Court relied on in coming to their decision:
“I believe it to be the duty of this Court to say that if a man is recommended by his own medical advisers and by others to undergo a course of treatment, he ought to undergo it; if he is advised that it gives him a reasonable chance of recovery, and if the treatment is reasonable, he ought to undergo it; if he will not, and does not, he must see that it is a little hard upon the defendants if they are to be asked to pay damages in respect of a period extending afterwards.”
“He was an uneducated, ignorant man who did not realize that a mental hospital nowadays is very different from what it was 30 or 40 years ago; and moreover, owing to his anxiety neurosis, he was not in a fit state to make reasonable decisions. The difficult question in the case is whether we are to admit this subjective condition of his as a reason for refusing medical treatment. I think not. We should do great harm if we allowed him to go on receiving compensation for the rest of his life because of his refusal to accept medical treatment. Persons who suffer from an anxiety state have more chance of recovery if they are treated as responsible human beings and are expected to behave reasonably, rather than as weaklings who can give way to their weakness and expect to get paid for it.”
The decision of the Supreme Court of Canada reflected this reluctance to award damages for people who appear to behave irrationally. Speaking very generally, the Supreme Court outlined the following principles which were to govern the duty to mitigate:
- if, before the accident, the plaintiff had psychological or emotional problems that limited his/her ability to mitigate, then the plaintiff may be excused from a duty to mitigate (see #2 below). If the plaintiff had problems with following treatment after the accident, he had to meet the duty to mitigate his damages;
- where the plaintiff had psychological or emotional problems before the accident, the plaintiff is only excused from a duty to mitigate if the pre-existing psychological or emotional condition was so severe that the plaintiff was incapable of making a rational decision about his/her treatment;
- if the plaintiff follows any one of several courses of treatment recommended by his doctors, he will be considered to have acted reasonably;
- the defendant has to prove that the plaintiff acted unreasonably and that if the plaintiff had undergone treatment, his/her situation would be better;
- if the plaintiff has failed to mitigate, his/her damages will be reduced to the extent that medical treatment would have improved their health and functioning. For example, in the case before it, the Court held that the plaintiff’s damages should be limited to his losses for the first two years (before surgery was recommended), and 30% of his losses after that time (since there was a 70% chance of success).
It’s not good enough for the defendant to point fingers…
In a 2017 appeal decision, the court was critical of the trial judge who reduced the plaintiff’s damages because she discontinued physiotherapy, didn’t exercise very much, didn’t take anti-depressants and increased her use of marihuana. The appeal court noted that the plaintiff had explanations for what she did which appeared reasonable and there was no evidence that if she had followed through on these treatments, the result would have been any different.
The Court of Appeal again emphasized the need to be fair and reasonable to plaintiffs in a 2018 decision where the plaintiff had stopped taking antidepressant medication because of side effects. By then, the mitigation test had been simplified to two questions:
- whether the plaintiff acted unreasonably in not following recommended treatment; and
- what difference that would have made.
The court said it didn’t count if the treatment was recommended by a defence expert who was not treating the plaintiff and since there was no evidence that treatment would have made a difference, the court decided there was no failure to mitigate.
Treatments that may apply to plaintiffs with a brain injury
The following are examples of some of the “treatments” that may be recommended for individuals with a brain injury:
- students may be encouraged to register with the disability resource centre, hire a tutor, tape all lectures, or take fewer or less demanding courses;
- individuals may be encouraged to take medications to counter the effects of a brain injury (problems sleeping, depression, anxiety, etc.);
- individuals may be encouraged to undergo counselling or cognitive behavioural therapy;
- individuals may be encouraged to have a job coach or make changes to their workplace so that they can function more effectively;
- individuals may be encouraged to organize their house or their daily activities using calendars, palm pilots, or other organizers;
- individuals may be encouraged to engage in a regular exercise program to improve their overall health, or address problems with their mood, balance, or stamina;
- individuals may be encouraged to work with occupational therapists, physiotherapists, speech language pathologists, or other specialists to try to improve specific areas of functioning.
How the duty to mitigate applies to plaintiffs with brain injuries
While appearing to be reasonable, the Supreme Court’s decision in Janiak can bring about fairly harsh consequences, particularly for plaintiffs who have suffered brain injuries. Persons with a brain injury can have several problems that make it difficult to understand the need for treatment and/or to undergo treatment. For example, they may:
a) not recognize that they have a problem that requires treatment because of lack of insight;
b) go through a stage where they deny they have any problems, because it is too frightening to admit that they have had a brain injury, or they are too proud or independent to be willing to admit they need help;
c) find it hard to follow through on treatment initiatives because they have problems with impulse control or forgetfulness;
d) distrust people who tell them what they should do;
e) develop psychiatric problems (such as depression) that complicate their ability to act rationally;
f) “burn out” with rehabilitation efforts, and get so tired of dealing with health care providers that they simply refuse to do anything more.
It seems quite unfair to penalize plaintiffs for difficulties they may have complying with treatment when they would not normally require any treatment, and the defendant has caused not only the injury but also the plaintiff’s problems complying with treatment.
In Janiak, the Supreme Court of Canada left open a door to other arguments (for example, that a person whose injuries prevent him from complying with treatment ought to be relieved at least in part of the duty to mitigate), but no one has yet walked through that door.
In the meantime, the key question is, what can be done to meet a duty to mitigate one’s losses?
How to meet a duty to mitigate
The courts have said that whether the plaintiff has met a duty to mitigate is a factual matter, not a legal matter. This means that the plaintiff’s lawyer is able to (and should) call evidence that counters the defence arguments about a duty to mitigate.
As plaintiff’s counsel, in order to address a mitigation argument, it is critical for the plaintiff and his/her family to appreciate from very early on that there is a duty to comply with treatment recommendations. The plaintiff’s lawyer should talk with the plaintiff and his/her family about what can be done and how the plaintiff feels about various treatment. The family should be encouraged to support the plaintiff in practical ways so that treatments that are available can be successfully implemented.
Practically speaking, there are ways to work with plaintiffs to help them in their rehabilitation. Often treatment issues are not black and white. If a treating doctor is recommending something that isn’t working (such as a specific medication which is producing side effects), the plaintiff and/or a family member should talk about the issues with the treating doctor to see whether there is any alternative treatment that is more acceptable. If the plaintiff resists a particular recommendation, it is a good idea to find out exactly what is objectionable. It may be that solutions can be found (e.g. the lecture can be taped by someone who isn’t embarrassed about bringing a tape recorder, a more compatible counselor can be hired) that get the same result.
A plaintiff may not mind one type of intervention, but will be vehemently opposed to another type of intervention. At trial, plaintiff’s counsel should focus on the treatment that the plaintiff has cooperated with, and explore ways to limit or deflect arguments on treatments that the plaintiff has resisted.
There are also more technical arguments to counteract a mitigation argument.
With respect to the principle that the plaintiff can follow any of several courses of treatments recommended by treating doctors, it is useful to clarify what recommendations the treating doctors have actually made, and if there are differing recommendations. The important point is that if the plaintiff has followed any one of several alternative courses, he/she will be considered to have acted reasonably.
With respect to the principle that the defendant has to prove that the plaintiff acted unreasonably and that complying with recommended treatment would have made a difference, plaintiff’s counsel should be careful to point out all of the treatments that the plaintiff followed through on, and what they entailed (in terms of time, energy, invasion of privacy, the demands on other people who may have had to support the plaintiff) to confirm that rehabilitation was taken seriously. It is also important to explain the plaintiff’s problems to show that rehabilitation is not easy, or certain. Lastly, plaintiff’s counsel should scrutinize defence experts and where appropriate, cross-examine them at trial on what proof there is that the rehabilitation which the plaintiff didn’t follow through on would have made a major difference.
The following is an excerpt of the law regarding the duty to mitigate in the employment setting.
In Evans v. Keill,  B.C.J. No. 3274, the court wrote (citations have been omitted):
“A plaintiff in a personal injury action has a positive duty to mitigate, including actively pursuing job opportunities. A failure to mitigate loss of income can be found on the basis of a lack of diligent efforts to find alternative employment. The plaintiff is obliged to take reasonable steps to find employment at a level he or she could reasonably have been expected to achieve in light of the injuries suffered as a result of the accident.
“The defendant bears the burden of establishing on a balance of probabilities: (1) that there were steps the plaintiff could have taken to mitigate; (2) that those steps were reasonable; and (3) the extent, if any, to which the loss would have been avoided by taking those steps. If the defendant establishes, on a balance of probabilities, that the plaintiff acted unreasonably, the determination as to the amount the plaintiff’s damages would have been reduced as a result of him or her acting reasonably may involve hypothetical or future possibilities which the court will weigh according to the relatively likelihood, where the possibility is real or substantial.
“… The court should take into account the subjective knowledge of the plaintiff regarding the proposed alternative employment. If the plaintiff has suffered, for example psychological injuries or a brain injury, are at the root of the alleged unreasonable behavior, it will be inappropriate to make a deduction for failure to mitigate.”
The best part of the duty to mitigate is that it encourages plaintiffs to move as far along the road to recovery as they can. In theory at least, it is a win/win situation – the plaintiff tries his/her best to recover and if that happens, the plaintiff is a winner in his/her real life. If recovery doesn’t happen, the evidence will be there for the plaintiff to say “I did my best, but couldn’t get better” and to recover compensation for the recovery that could not be achieved.
Dealing with injuries is never easy. It is particularly difficult when one deals with a brain injury, because our brains define us as who we are, and direct what we do. Injuries to the brain can undermine our self-identity and disrupt our activities, so the obligation to act in a reasonable way can be very challenging for plaintiffs with brain injuries.
Dealing with judges and juries can also be challenging. It is never possible to predict exactly how a judge or jury will respond to a defendant’s argument that the plaintiff failed to mitigate his/her damages – whether they will appreciate the difficulties the plaintiff has experienced and judge with compassion, or whether they will hold up a standard of reasonableness that may be hard for even healthy people to meet.
In light of these considerations, the best place to be is “in the know.” From the very early stages of recovery, it is important for the plaintiff and family members to understand the duty to mitigate. In situations where the plaintiff cannot understand or accept or control his/her behaviour, it is especially important for friends and family members to step in to support the plaintiff’s rehabilitation and for there to be an ongoing dialogue with the lawyer and treating care providers concerning the best way to work with the plaintiff to bring as much recovery as possible.
With care and good advocacy, these efforts should not go unheeded.
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