Tuesday, September 16, 2014

Non-Pecuniary Damages Reduced for Failure to Mitigate

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 admitted.

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:

[38]         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:

[40]        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:

[41]        The 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:

[57]      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), [1985] 1 S.C.R. 146.

Ultimately, Mr. Justice Funt concluded:

[42]        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


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