09 Mar Nurse’s Failure to Mitigate
The Plaintiff in Forster v. Kidd, 2020 BCSC 220, was a registered nurse. She worked in a mobile unit in which a psychiatric nurse and a police officer would go into the community and make contact with individuals with mental health issues. The Plaintiff was a front seat passenger in an unmarked police vehicle when it was involved in an accident.
The Plaintiff was injured in the accident. She had not been required to return to work by her employer and was in receipt of long-term disability benefits.
At trial the Plaintiff continued to suffer from constant numbness and tingling in her hands, with occasional flare-ups. Her mood had also been mildly affected. She suffered from anxiety, although she had some anxiety prior to the accident.
The Plaintiff was physically active prior to the accident. The court’s concern was that she continued to participate in cooking, running (including trail running), hiking, surfing, paddle boarding, and traveling following the accident. Notwithstanding this level of activity, she claimed she could not work, even part-time. The judge agreed with a number of the experts that this seemed improbable.
The court concluded that the Plaintiff tended to overstate her pain and her limitations. Given her physical abilities and the functional capacity testing which found no limitations regarding her ability to write, type, or sit for prolonged periods of time, there was a disconnect between her reporting of her pain and limitations, and her actual post-accident abilities and lifestyle.
In not attempting to return to work, the court found that the Plaintiff failed to mitigate her damages. The court found that she likely could have worked 40% of her pre-accident hours if she worked four, four-hour shifts per week with a break after two days.
As a result of the Plaintiff’s failure to mitigate, both her $320,000 award for past loss of earning capacity and her $235,000 award for future loss of earning capacity were reduced by 25%.