09 Nov Returning to Work After a Motor Vehicle Accident

Questions of mitigation often arise in personal injury cases when the Plaintiff fails to undergo recommended medical treatment or therapies. Questions of mitigation also arise in the context of a Plaintiff’s failure to return to work, and the financial consequences can be serious.

In general, Plaintiffs recovering from injuries sustained in a motor vehicle accident will be expected to return to work, whenever possible. A Plaintiff has a duty to mitigate damages by seeking a line of work that can be pursued in spite of his injuries. If a Plaintiff is unqualified for such work, then he is required, within the limits of his abilities, to pursue education or training that would qualify him for such work. If a Plaintiff claims he is not able to mitigate by pursuing other lines of work or by retraining, he must prove this on a balance of probabilities.

In the case of Mullens v. Toor, 2016 BCSC 1645, the Plaintiff was working as a junior manager at the Royal Bank when the accident occurred. She suffered relatively modest physical injures in the collision yet had not returned to work almost four years post-accident. The Plaintiff claimed that she was incapable of resuming her former career due to a combination of ongoing physical and psychological injuries. She was adamant in her evidence that although she always wanted to return to work, she was never able to make the attempt, and could not do so. The Judge did not accept this.

The Judge stated that the Plaintiff should have attempted to return to work nine months after the accident. By then she had reluctantly accepted her doctor’s advice to use an anti-depressant and was feeling better. The Judge acknowledged that there was a risk that the re-entry would not have been successful at that time but another opportunity to attempt a return to work would have been after the birth of her second child.

The Plaintiff had a very supportive employer who thought very highly of her, and who was aware of its duty to accommodate her and was prepared to do so. Even as late as four years post-accident, the Plaintiff’s former branch manager and mentor was enthusiastic about her pursuing part-time work as a client advisor. The Plaintiff felt that this work was beneath her. The Judge felt her refusal to consider the options offered by the bank were unreasonable.

The evidence supported the conclusion that a return to work would have benefited the Plaintiff’s physical and mental well-being. The Judge concluded that if the Plaintiff attempted to return to work, there was a better than 50% chance that she would have been successful. Her failure to attempt to return to work was a failure to make reasonable efforts to mitigate her loss.

The Judge calculated the Plaintiff’s loss of past earning capacity was $191,747 for the period nine months post-accident to the date of trial. This amount was then reduced by 50% due to her failure to mitigate.

The Judge held that $350,000 was fair and reasonable compensation for the Plaintiff’s future loss of earning capacity. This amount was also reduced by 50%, to $175,000, due to her failure to mitigate.