The Duty (and Pain) of Mitigation

Recovery after an injury can be uncomfortable and even painful. However, ignoring the problem may not be enough to make it go away. Delaying medical treatment and/or failing to follow medical advice can have adverse consequences both to your physical recovery and to your potential recovery of damages against a third party.

The Court of Queen’s Bench of New Brunswick recently considered an injured person’s duty to mitigate in O’Neill Jones v Chabot, 2015 NBQB 143. The Plaintiff, Ms. O’Neill Jones, was injured in a motor vehicle accident caused by the Defendant, Ms. Chabot. Ms. Chabot admitted liability for the collision, and the sole issue to be decided was the amount of damages to be awarded.

Ms. O’Neill Jones required extensive medical treatment following the collision, including physiotherapy, surgery, and multiple discipline assessments. Despite the numerous treatments received, Ms. O’Neill Jones continued to experience chronic pain, and she had not returned to work due to her physical limitations. Her chronic pain was combined with psychological issues, including depression, anxiety, and cognitive issues.

Ms. Chabot argued that Ms. O’Neill Jones failed to mitigate, and in fact aggravated her post-collision injuries, by failing to follow medical advice.

The Court referred to the Nova Scotia Court of Appeal’s decision in White v Slawter, (1997) 149 NSR (2d) 321. Justice Freeman explained in White v Slawter that a plaintiff will not be awarded damages resulting from his or her failure to mitigate. This could apply where there is evidence that the plaintiff could have made a substantial improvement by following a recommended course of treatment. There must only be a likelihood that the treatment would have been successful to affect the assessment of damages. Though the treatment might be painful or uncomfortable, Justice Freeman explained at paragraph 90 that “a reasonable person must be expected to endure a reasonable degree of pain in an effort to avoid long-term disability.”

Ms. O’Neill Jones failed to mitigate her damages. Following the collision, Ms. O’Neill Jones made the decision to place her right arm in a sling. This was not recommended by any of her treating physicians. She continued to wear the sling on her right arm for extended periods of time, against medical advice and evidence that her right shoulder pain and stiffness were significantly influenced by the sling.

Ms. O’Neill Jones further acted against medical advice by failing to increase her activity level; failing to fully participate in psychological counselling and mental health services; and, failing to complete a program designed to target psychological risk factors from pain and disability and to develop an activity schedule to maximize recovery and quality of life.

The Court reduced the awards for general damages and loss of future income by 15% to account for Ms. O’Neill Jones’ failure to mitigate.

Please note that this article is meant to provide information only and is not intended to confer legal advice or opinion. If you have any further questions please consult a lawyer. Please note as well that many of the statements are general principles which may vary on a case by case basis.