What is a Failure to Mitigate Loss in a Calgary Personal Injury Case?
When you get injured after another person acts negligently, they have a duty to compensate you for those losses.
Yet you have duties, too, even after you get hurt.
Your primary duty is loss mitigation. That is, you must take reasonable steps to minimize the costs of your injuries, from the amount of medical treatment you require to your ability to eventually transition back to full-time work.
If you could have taken reasonable steps to avoid certain losses, the courts may rule that the defendant is not responsible for some of your costs.
Examples of Loss Mitigation Steps
Here are some examples of steps you could take to mitigate loss.
- Seeing a doctor immediately after an accident ensures you don’t have hidden damage you can’t feel or see yet.
- Follow doctor instructions to ensure you don’t reinjure yourself or exacerbate an injury.
- Accepting any treatment doctors recommend might help you, such as physical or massage therapy.
- Avoid activities that could aggravate your injuries or cause reinjury, even if a doctor doesn’t strictly prohibit them.
Most of these examples involve medical compliance because medical compliance failures are most likely to come up in court.
Loss Mitigation Considerations
Courts are well aware that defendants will attempt to use loss mitigation to defray their costs wherever possible. The Canadian Supreme court has made several rulings that have reduced the avenues defendants may use to raise issues of loss mitigation.
You are not expected to incur unreasonable expenses or inconvenience.
In the 1997 case Calgary v. Costello, the Canadian Supreme Court explicitly ruled that a plaintiff need not incur an unreasonable risk or embark upon a speculative venture to mitigate losses. They also expressly ruled that the plaintiff is not required to incur great expense or inconvenience “in an attempt to stem the flow of losses resulting from the defendant’s breach.”
If, for example, your doctor gives you the option of pursuing a highly experimental, very risky, and costly treatment to address some of your injuries, and that treatment would require you to travel to another province and spend an additional three months out of work while you recover, the defendant may not turn around and claim that you failed to mitigate your losses just because you turned down this dubious opportunity.
The steps you must take rely on the knowledge you have at the time you could have taken them, not on hindsight.
In the 1988 case, Tangye v. Calmonton Investments, Ltd., the Court of Appeal of Alberta ruled that the law does not expect perfection or hindsight.
Though this was not a personal injury case, it has been cited in personal injury cases to clarify that defendants may not expect plaintiffs to take steps they don’t know to make.
The test is “acting reasonably.”
The courts will be looking at whether a “reasonable person” would have made the same or similar choices when presented with the same opportunity to mitigate loss.
There is, of course, no agreement on what is or is not “reasonable.” It will be up to your personal injury attorney to defend your choices during settlement conferences or in court should your case proceed to litigation.
Unsure about your choices?
Involving a personal injury lawyer early can make a big difference to your case outcome. For one thing, if you’re on the fence about whether or not you will need to take certain actions for loss mitigation purposes, you can ask your attorney for an informed recommendation.
Haven’t hired your personal injury lawyer yet? Reach out to the team at Merchant Law to get started today.
