June 12, 2010, Kitchener, Ontario
Posted by: Robert Deutschmann, Personal Injury Lawyer
The Ontario Court of Appeal recently dealt with a personal injury case where the plaintiff appealed the trial judge’s decision that the plaintiff failed to mitigate her damages and therefore her award for damages was reduced by 25%.
Mitigation involves an injured party taking steps to minimize the impact of the injuries on their life, their losses including pain and suffering, past and future income loss and future medical expenses. The law expects that although one is injured in an accident, the injured person has to make best, reasonable efforts to get back to life as it was prior to the accident. We all appreciate someone that makes their best efforts to get better or try to get better (ie. attempt to get back to work). The courts will want to see evidence of a reasonable attempt to mitigate losses. Where the court is satisfied that there is not a satisfactory reason for the failure on the part of the plaintiff to take some steps to mitigate the losses then they will reduce the amount of the damages awarded to the plaintiff.
In this case, the plaintiff was injured in a car accident. The plaintiff suffered a fracture to two fingers in her hand and a fractured sternum. She also claimed soft tissue injury to her neck and back as well as a major depressive disorder due to the injuries. The trial judge awarded $60,000.00 for the injuries suffered in the accident. However, the trial judge also dealt with the issue of mitigation of damages. At trial, the judge found the following:
“... I am satisfied that the plaintiff failed to act reasonably in mitigating her damages, and that, in turn, exacerbated and prolonged her symptoms. There was no pre-existing condition that prevented her from making rational decisions regarding her injuries and their treatment.
 The pattern of missed appointments started as early as October of 1998, before the onset of the plaintiff’s depression.
I find that the plaintiff failed to follow her health care providers’ recommendations for treatment of her physical injuries. I find that there is a strong likelihood that if she had followed these recommendations there would have been a substantial improvement in her condition.
ii) Failure to Mitigate Physical Injuries
 The plaintiff failed to mitigate her damages by refusing to follow recommended treatment for her physical injuries. She frequently missed physiotherapy appointments, some of which were prior to the appearance of depression symptoms. She ignored recommendations for physiotherapy in November 1999 and March 2000. She did not follow up on programmes for chronic pain control. She missed appointments with her specialists. She failed to pursue recommended treatments such as Stellate Ganglion Blocks, trigger point injections and acupuncture.
iii) Psychological Problems and Failure to Mitigate
 It is unlikely that the plaintiff’s psychological problems were so severe that she could not rationally choose to pursue these recommended treatments and to appreciate their value to her health.
iv) Can the Plaintiff’s Psychological Problems Excuse her Failure to Mitigate?
 The plaintiff’s failure to mitigate led, or contributed, to her psychological problems and she cannot use these psychological problems as a reason for failing to mitigate her physical injuries. Her symptoms did not pre-date the motor vehicle accident. See White v. Slawter, para 90:
The psychological overlay usual in cases of chronic pain syndrome appears to initially involve anxiety and reactive depression caused by the persistent pain; thus, it may be a product of the failure to mitigate. The emotional reaction may reinforce the reluctance to mitigate and a vicious circle may develop, but the root cause is not the initial injuries but the plaintiff's failure to behave reasonably. Therefore, following Janiak, psychological symptoms which develop in the aftermath of a tortious accident cannot be said to have been pre-existing, and therefore cannot excuse the failure to mitigate.
v) Failure to Pursue Educational/Vocational Opportunities
 The plaintiff failed to mitigate damages to her career aspirations by failing to pursue numerous educational/vocational opportunities including an offer for special accommodations at school. Her indolence with respect to treatment was showing early on after the accident, within two months.
 The plaintiff’s behavior, with regard to her various physicians’ and experts’ recommendations throughout the material time, was marked by insouciance, if not outright avoidance. This behaviour has significantly compromised her recovery.
 Consequently, the general damages of $60,000.00 and the past lost income of $72,800.00 will be reduced by 25% as a result of inadequate mitigation. “
The Court of Appeal upheld this reduction to damages by the trial judge. The Court of Appeal held that the evidence established a failure on the part of the Plaintiff to follow up on certain treatment recommendations from health care providers and thereby prolonging and exacerbating the Plaintiff’s injuries. The Court of Appeal agreed that based on the lack of evidence of any head injury at the time of the accident, the issues relating to depression or psychological injury affecting the Plaintiff’s ability to make decisions regarding treatment could not stand in this case.