10 Dec Duty of Pedestrian to Mitigate Losses

The Plaintiff in the case of Lourenco v. Pham, 2013 BCSC 2090, was a pedestrian struck in a cross walk. She sought damages for injuries she sustained in that accident. The Defendants admitted liability for the accident but asserted that the Plaintiff failed to mitigate her damages. They argued that if the Plaintiff had pursued physiotherapy in accordance with her doctor’s recommendation, her symptoms would have improved earlier.

The burden was on the Defendants to prove the Plaintiff did not meet her duty to mitigate.  In order to prove a failure to mitigate, the Defendants had to establish 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 she acted reasonably.

The Defendants argued that the Plaintiff did not comply with her doctor’s advice at the first post-accident appointment, where it was recommended that she attend physiotherapy. The Defendants asserted that this demonstrated a failure to mitigate her losses and suggested that her injuries were not as serious as she claimed. They further argued that her pain and suffering would have been reduced if she had pursued physiotherapy earlier. The Court noted that the Defendants’ claim was similar to other “failure to mitigate” arguments that had been considered and rejected in previous cases.

The Court noted that the Plaintiff was a pedestrian hit by a vehicle. There was no doubt she suffered a great deal of pain and her belief that physiotherapy would be too painful to pursue right after the accident was reasonable. The Court also accepted that the Plaintiff did not have the money to pay for physiotherapy. The Court did not agree with the Defendants’ suggestion that she should have borrowed money from her parents and friends to enable her to go to physiotherapy.

The Court held that the Defendants had not met the onus of proof required to demonstrate that the Plaintiff had failed to mitigate her losses, and their argument was rejected.