The BC Supreme Court
recently released its reasons for judgment, in the case of Rasmussen v. Blower 2014 BCSC 1697, where the Court
ultimately reduced the plaintiff’s award for non-pecuniary damages by 20% for
failure to mitigate his damages.
In this case, the
plaintiff, Christopher Rasmussen, was a passenger in a stopped vehicle which
suffered a rear end hit by defendant, Todd Blower’s, car. Liability was
Mr. Rasmussen suffered soft tissue injuries, which left him with neck and back
pain, knee pain, left leg numbness and headaches. These injuries, along with a
number of additional damages, including pain and suffering and loss of
enjoyment of life in the future, were pleaded by the plaintiff. The defendant responded,
pleading in part that, by the plaintiff’s failure to follow medical advice and
recommended courses of treatment, the plaintiff failed to mitigate his damages.
Particularly with respect to his consumption of alcohol while taking prescribed
medications, the defendant submitted that the plaintiff’s non-pecuniary award
should be reduced by 10-20% to account for his failure to follow medical
advice, or to take steps to reduce or alleviate his own injuries, and/or the
accompanying symptoms of pain he had reported. The Court ultimately agreed with
the defendant, reducing the plaintiff’s non-pecuniary damages by 20%.
In his reasons, Mr. Justice Funt pointed to the duty of an injured party, to
mitigate their damages, stating:
 The law does not encourage indolence. An injured party
has a duty to mitigate: see
Graham v. Rogers, 2001 BCCA 432 (CanLII), 2001 BCCA 432, at para. 35. In this type of case, the
plaintiff must seek and follow the advice of his or her physician with the goal
of overall improvement and recovery.
In rejecting the
plaintiff’s submissions as to why medical advice was not followed, the Court
went on to comment:
The Court rejects the plaintiff’s reasons for failure to
mitigate. Realistically speaking, perseverance is often the key to
allowing medical treatments a chance to work. During the approximately
three months for which the plaintiff claims past wage loss, he could have
attended physiotherapy and massage sessions. The Court is satisfied that
he had sufficient funds or, as noted by defence counsel, he could
have claimed Part 7 benefits (Insurance (Vehicle) Regulation, B.C.
Reg. 447/83, Part 7).
Finally, the court
reiterated the requirements to be met, for a defendant to prove that a
plaintiff could have avoided their loss (either in whole or in part), affirming
that the onus was met in this case, stating:
defendant did not argue that, if the plaintiff had followed the medical advice
he received, the plaintiff’s injuries would have resolved within “6 months to a
year or so”: Price, supra. The defendant stated that the
plaintiff’s non-pecuniary award should be reduced by 10%-20% in order to take
into account the plaintiff’s failure to mitigate. The defendant has
satisfied the two-pronged test in Chiu v. Chiu, 2002 BCCA 618 (CanLII), 2002 BCCA 618, set forth by the late Mr. Justice Low,
writing for our Court of Appeal:
The onus is on the defendant to prove that the plaintiff could
have avoided all or a portion of his loss. In a personal injury case in
which the plaintiff has not pursued a course of medical treatment recommended
to him by doctors, the defendant must prove two things: (1) that the
plaintiff acted unreasonably in eschewing the recommended treatment, and
(2) the extent, if any, to which the plaintiff's damages would have been
reduced had he acted reasonably. These principles are found in Janiak v. Ippolito, 1985
CanLII 62 (SCC),  1 S.C.R. 146.
Ultimately, Mr. Justice Funt concluded:
The Court will reduce the non-pecuniary award it would
otherwise have ordered by 20%. The plaintiff failed to mitigate by not
following the reasonable treatments recommended to him. He also consumed alcohol
in quantity which, pragmatically viewed, probably reduced or nullified the
effectiveness of the prescribed medications.
posted by Collette Parsons at