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The Duty to Mitigate in Personal Injury Matters

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The Duty to Mitigate in Personal Injury Matters

Don’t delay discussing your matter with us to find out how to build a winning case.

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You don’t pay us unless we win your case. No Out of pocket expenses required.

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A plaintiff in a personal injury claim has a duty to avoid incurring damages by acting reasonably. This means that a plaintiff must act in a manner that minimizes damage, even though the other party also has a portion of the duty of care in the case. What is reasonable varies on the circumstances of each individual case. If you’ve been in a slip and fall accident, for example, it’s important to speak with a lawyer to understand how best to minimize damage.

If a court decides that the plaintiff has not acted reasonably and has not avoided further damages, then the court will not award the plaintiff further damages. However, the court will allow a plaintiff to recover any costs incurred in an attempt to mitigate his or her losses even if unsuccessful.

In a lawsuit the onus is on the defendant to prove that the plaintiff has not mitigated his or her damages. The defendant must prove the steps that the plaintiff might have reasonably taken to avoid the loss and the extent that the damages would have been reduced if the plaintiff would have taken appropriate steps.

The most common allegation of failing to mitigate comes from failing to follow up on recommended treatment. Plaintiffs must be very aware of the treatment options that their own physicians have recommended. Insurance doctors may also recommend various types of treatment that may help a plaintiff to get better. If the plaintiff refuses or neglects the treatment options available to them, then it is open to the defendant to argue that they have failed to mitigate and that they are now responsible for the state that they find themselves in. The defendant, however, must be able to prove what state the plaintiff would be in if they had taken the recommended treatment.

How far can the mitigation argument go? Is it open to the defendant to argue that the plaintiff has failed to mitigate if they refuse treatment as invasive and risky as surgery? The quick answer is yes, but it must be found to be a reasonable treatment option by the court.

The Supreme Court of Canada dealt with this issue squarely in the case of Janiak v. Ippolito. The plaintiff in Janiak was faced with the decision to have relatively safe back surgery after an accident. He refused to have surgery as there was no guarantee of success and there was a chance that his condition could get worse and that he could even die in the surgery, although these risks were very low. The Supreme Court of Canada held that the plaintiff did not act reasonably although it respected his right to turn down treatment options. Essentially, the Supreme Court of Canada took the position that a plaintiff should not be compensated for damages that could have been avoided by the surgery. The surgery in this case had a 70% chance of being successful, and if successful almost 100% chance of recovery. Without the surgery, the plaintiff would not have been able to continue his career as a crane operator. The Court indicated that the principle that a plaintiff cannot recover damages which could have been avoided by the taking of reasonable steps underlies the duty to mitigate. Avoidable damages are to be determined by assuming that the plaintiff has agreed to an operation not yet performed rather than looking at what on the balance of probabilities would have happened had the operation taken place. The courts must therefore take into account any “substantial possibility” of failure and the amount by which full compensation would be discounted would represent the avoidable loss.

Plaintiffs should always try to follow treatment recommendations from their physicians, for not only their own condition but also to avoid a reduction in damages in any personal injury lawsuit. When it comes to invasive treatment such as surgery, a plaintiff should not only speak to their physicians but also their lawyer to find out the legal effect that refusing a surgery may have on their own lawsuit.

For more information, visit our slip and fall lawyer section. If you have any questions, book a free consultation or call 1-855-446-7765 for immediate assistance.

Disclaimer: The content of this article is a general guideline made available for educational purposes only and is not intended to be used as legal advice for the reader’s specific situation nor in general. By reading our blog and website content, the reader acknowledges the above and understands there is no lawyer-client relationship created between you and Himelfarb Proszanski through this content. To get specific legal advice, we encourage you to book a free consultation with one of our lawyers to clarify the legal aspects of your situation.

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Don’t delay discussing your matter with us to find out how to build a winning case.

Please enable JavaScript in your browser to complete this form.

You don’t pay us unless we win your case. No Out of pocket expenses required.

Note: Your Privacy is Safe with us. We will never disclose your information to external parties.

Timing is Critical. Help is Free.

Don’t delay discussing your matter with us to find out how to build a winning case.

Please enable JavaScript in your browser to complete this form.

You don’t pay us unless we win your case. No Out of pocket expenses required.

Note: Your Privacy is Safe with us. We will never disclose your information to external parties.

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Sherene AlySherene Aly
16:02 23 Mar 24
I was very pleased with my decision to retain David and his team for my case. Melissa Gizzo was simply amazing and was able to secure a fair settlement for me.
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Experienced and excellent law firm. Their lawyers are wonderful, articulate, dilligent, amicable, calm, respectful, responsible, resourceful and have good human and customer relationships Especially DAN HOLLAND 👌 He is an amazing lawyer as regards dealing with any of the Accident case.I was involvedIn an accident in 2019 February. He was God sent as he dutifully and relentlessly worked hard until the case was settled
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22:43 18 Jan 24
I highly recommend Dan Holland as a disability lawyer. His commitment to my case made the process seamless. Dan's clear communication and ability to simplify complex legal matters made it easy for me to understand every step. He demonstrated genuine concern for my best interests, making him not only a skilled attorney but also someone easy to talk to.Dan’s support extended beyond legal expertise; he alleviated my stress during the long-term disability case. His calm approach and unhurried demeanour ensured that there was no rush in our collaboration. This, coupled with his dedication, made the entire experience more manageable, fostering confidence in his ability to handle the case with meticulous care.I wholeheartedly endorse Dan for anyone seeking a lawyer who not only gets results but also prioritizes your peace of mind.
Neeshanth SritharanNeeshanth Sritharan
21:49 01 Jan 24
My mom was involved in an accident impacting her daily life and ability to work. Dan Holland has worked with us during the duration of our case and has been helpful in fighting for her and supporting us, and organizing the things we needed. Our family is incredibly grateful of the outcome Dan was able to obtain for us. I would highly recommend him!
Faiza HamidFaiza Hamid
01:26 22 Dec 23
I'm so happy I chose Mena Brar and her team represet us . We could not ask for a better team she is so kind, loyal, and honest. she spoke to me as an equal and made me feel as if my case was definitely important and that I deserved to be fairly compensated. I appreciate you. Did it for me and how this will help me get back on track with my life. keep helping others. You are doing amazing works, Mena Brar. I wish you all the best.
Brenda FurtadoBrenda Furtado
23:38 12 Dec 23
Many thanks to Silene Malhao for settling my husband's TORT claim and to Mena Brar for settling his accident benefits claim. These ladies made themselves available any time we had a question. They were very understanding and compassionate. We were completely taken care of throughout this process. We would definitely recommend this team to friends and family!
ShaunaShauna
15:52 06 Dec 23
We are so happy that we had David and his team represent us. We couldn't have asked for a better team. Not only is David incredibly skilled and experienced, he is kind and compassionate and it is clear how much he cares for his clients. Megan was also absolutely amazing to work with and was always on top of everything and there to answer any questions we had! Thank you!
Andrew CoutoAndrew Couto
23:10 21 Nov 23
I'm so happy I chose David as my lawyer. I spoke to a few lawyers before finding David and I noticed majority of them spoke to me in a way that felt demeaning or that my case wasn't big enough or important enough to take. One phone call with David and my opinion on lawyers changed. He spoke to me as an equal and made me feel as if my case was definitely important and that I deserved to be fairly compensated. The whole process was wonderful. From dealing with David's law clerk Ingrid whom is an amazing and kind woman to his legal assistant Melissa whom is another amazing kind and talented young woman. I was so stressed about this case but from day 1 they helped ease that stress and always answered all my questions promptly and respectfully. I couldn't believe David got me to mediation within 6 months of being cut off my LTD and got me a settlement way beyond my expectations. I can't say enough good things about this law firm but I guarantee you that if you need a lawyer to fight for you David is your guy! . Believe me when I say this is the law firm for anyone dealing with personal injuries especially LTD denial claims. Thank you so much to David, Ingrid and Melissa you truly don't know how much I appreciate all you did for me and how this will help me get back on track with my life. Keep helping others you guys are doing amazing work! I wish you all the best!
Rose RegazziRose Regazzi
21:15 11 Oct 23
I sustained a relatively painful injury, affecting me long term.I wouldn't otherwise had pursued it, as it involved a relatively large corporation, but felt it necessary to do so. However, many lawyers were daunted, with one, who actually referred me to HIMPRO.I was connected with Dan Holland, who reviewed the case, provided with me realistic expectations, sound advice and had a willingness to move forward and represent me.His calm and professional demeanor, brought me to a place of reassurance. His ease in addressing all facets of this process, clearly demonstrated a wealth of experience. There was never any hesitation, when being challenged, and felt my best interest was always in the forefront.This case has since been resolved, to my complete satisfaction.Without reservation, HIMPRO (and Dan Holland, in particular), would be the only firm I would recommend for these type of cases.
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