Sometimes it is obvious in a car accident case when a jury does not like a litigant. Although after 22 days of trial, the jury found the City of Surrey negligent for failing to adequately maintain the snowy roadway, they found the claimant 75% contributorily negligent. The jury also reduced her award by a further 75% on a finding that she did not try to get better and therefore failed to mitigate her loss. A $3.5-million injury award quickly became $223,500.00.( see Rhodes v. Surrey (City), 2016 BCSC 188).
In this article I focus on the successful appeal of the decision to reduce the claim by 75% for failure to mitigate. The win on appeal increased the value of this personal injury to $894,150. The original jury assessment is summarized:
- Pain and Suffering: $100,000
- Past loss of income from car accident to start of trial: $305,000
- Future loss of income from start of trial going forward: $1,085,000
- Special Damages (out of pocket Expenses): $45,000
- Cost of future care: $1,955,000
- Ministry of Health: $36,600
- In-Trust Claim: $50,000
Total Personal Injury Award: $3,576,600
The Court of Appeal made it clear that to succeed on the defence of mitigation, a defendant such a the City of Surrey or in most car accident cases CBC, must prove both that the injury claimant acted unreasonably in ignoring a recommended treatment and that her damages would have been reduced had she undertaken the recommended treatment. The fact that a particular treatment might afford some relief is not sufficient.
Speaking for all three Court of Appeal judges, Mr. Justice Goepel stated,
 In this case, there was no evidence that Ms. Rhodes failed to follow a recommended treatment. While she stopped taking antidepressant medication on two occasions because of side effects, she advised her treating physician that she had done so. Ultimately, other antidepressant medication was prescribed and taken. There was no evidence that Ms. Rhodes’ damages would have been reduced if she had not on two occasions stopped taking the antidepressant medication.
 There is also no evidence that Ms. Rhodes failed to follow a recommended course of active medical treatments. Ms. Rhodes cannot be faulted for failing to undertake treatments that were not prescribed. Dr. O’Shaughnessy was not her treating physician. In his written opinion, he did not recommend such treatments. It is a matter that only arose in the course of his cross-examination. There was no evidence that Dr. Shah ever recommended such a course of treatment. The cryptic reference “keep as active” in his clinical records is not evidence that Ms. Rhodes failed to follow a recommended course of treatment.(Rhodes v. Surrey (City), 2018 BCCA 281)
The onus was on the City Surrey to prove a failure to mitigate which was not done. In these circumstances the jury’s verdict reducing the personal injury award for failure to mitigate was be set aside by the Court of Appeal.
Posted by Mr. Renn A. Holness, B.A. LL.B.