29 Jul Mitigating Your Loss
In a personal injury action, the Plaintiff has a duty to take reasonable steps to limit his or her loss. The Defendant has to prove that the Plaintiff was unreasonable not to take steps to mitigate, and the loss would have been eliminated or reduced had the steps been taken.
In the case of Karst v. Foster, 2019 BCSC 1043, the Plaintiff’s back was injured in a car accident. His pain worsened to the point that he was no longer capable of carrying out his duties as a federal correctional officer. At trial there was a dispute over whether he failed to mitigate his damages by seeking alternative employment with the Correctional Service of Canada (“CSC”).
The Defendant argued that the CSC would have, and was required to, provide accommodation to disabled employees. This could have included reduced hours, as well as the assignment of tasks that did not involve bending, lifting, prolonged sitting or contact with inmates. However, the evidence was that there were limited posts outside the primary response posts and that, on any given day, there may be a number of officers with medical limitations and limited flexibility. Depending on the day, there may be more employees with medical issues than alternative posts available.
The Plaintiff argued that the Defendant has not established that any accommodation could have reduced his losses given his current level of pain and incapacity. He did engage in what might be considered a continuous attempt at accommodation over the course of almost three years.
The issue of mitigation was a difficult one for the judge because there was no evidence of direct discussions between the Plaintiff and his employer at the time he went off work in relation to the availability of workplace accommodation. The evidence at trial of possible modified duties for the Plaintiff was hypothetical rather than specific to the Plaintiff’s individual needs and limitations.
While the judge accepted that the Plaintiff could have been more proactive in exploring the possibility of accommodation at the time he left work, she did not find that his conduct was so unreasonable as to amount to failure to mitigate. The judge accepted that by the time he went off work, he had simply reached the limits of his capacity to cope with his back pain and constant fatigue.
The judge rejected the defence of mitigation and declined to make any deduction from the damages assessed for the Plaintiff’s loss of past and future income earning capacity. Her assessment of damages accounted for the prospect that the Plaintiff might return to work, perhaps on a modified basis. Although she assumed that the Plaintiff would continue to explore employment options with his employer to the extent that his health improved, she could not conclude on the evidence that the Plaintiff had unreasonably failed to pursue such avenues.