06 Nov Plaintiff’s Award Reduced By 75% Due To Contributory Negligence

In Rhodes v. Surrey (City), 2018 BCCA 281, the Plaintiff sued the City of Surrey in negligence after she was injured when her car slid through an icy intersection and crashed. She alleged the collision was caused by the negligence of the City of Surrey, in failing to take reasonable steps to address the road conditions encountered that morning. There was no evidence that the Plaintiff was speeding or otherwise driving erratically, but other drivers testified they had driven through the intersection on the same day without incident.

A jury found the City of Surrey negligent and assessed the Plaintiff’s damages at $3,576,600. However, the jury also found the Plaintiff 75% contributorily negligent.  The jury reduced her award by an additional 75% for failing to mitigate her loss. After the deductions for contributory negligence and failure to mitigate, the Plaintiff only received an award of $223,537.50.

The Plaintiff appealed, alleging there was no evidence to support the contributory negligence and mitigation findings. The Court of Appeal allowed the appeal in part.

The Court of Appeal held that while there was no direct evidence of the Plaintiff’s negligence at trial, there was some evidence of others being able to traverse the intersection without difficulty. The fact that other drivers were able to maintain control of their vehicles was circumstantial evidence for the jury to weigh and determine in considering whether the Plaintiff has failed to meet the standard of a reasonable driver. As a result, the Plaintiff’s appeal on this issue was not allowed.

The Plaintiff also appealed on the mitigation issue. At trial, the City of Surrey had identified three acts or omissions that it said amounted to a failure to mitigate: (1) the Plaintiff discontinued taking anti-depressants on two occasions; (2) she avoided active physical treatments, preferring passive therapies; and (3) she did not undergo behavioural therapy. The City of Surrey relied on the first two grounds on appeal.

The Court of Appeal held that there was no evidence that the Plaintiff failed to follow a recommended treatment that, if complied with, would have decreased her damages. As such, the Plaintiff’s appeal was allowed on this issue and the finding that the award be reduced by the additional 75% for failure to mitigate was set aside.