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.
