In the case of Harmati v. Williams, the Plaintiff sought damages and alleged that she suffers from post-traumatic stress disorder and generalized anxiety disorder as a result of the accident. Counsel for the Plaintiff was Craig McTavish and counsel for the Defendants was J. Marquardt & A. Girous. The case was heard before the honourable Madam Justice Choi.
On June 11, 2011, the Plaintiff was a passenger in a 2007 Suzuki Swift owned by the Defendants, when the driver, driving a 2010 Dodge Ram, struck the rear of the Swift on Lougheed Highway near Austin Road in Coquitlam. the Plaintiff alleges that as a result of the accident she suffered injuries to her neck and back, as well as psychological injuries. Liability has been admitted. Causation for the Plaintiff’s injuries and the quantum of damages are in issue. The Defendants disagree that the Plaintiff’s ongoing symptoms and alleged disability are caused by the injuries she sustained in the accident.
The Plaintiff seeks damages and alleges that she suffers from post-traumatic stress disorder and generalized anxiety disorder as a result of the accident.
The Defendants submit that the Plaintiff failed to mitigate her damages and that awards ought to be reduced by 20% due to her failure to mitigate. They argue that the Plaintiff did not seek treatment in a timely fashion and that after she attended counselling and active rehabilitation, the Plaintiff saw improvement; however, she discontinued these services and did not seek physiotherapy. The Defendants claim that this amounts to a failure to mitigate. The Plaintiff submits that she has not failed to mitigate her losses and cites a lack of financial resources as the reason that she stopped active rehabilitation. The Plaintiff testified that she believed ICBC should pay for any rehabilitation costs.
The Defendants argue that the Plaintiff had the financial ability to continue active rehabilitation, as evidenced by Mr. Gosling’s testimony about his offer to pay for treatment. As there was no real financial impediment to the Plaintiff receiving treatment, the Defendants claim that her failure to do so amounts to a failure to mitigate her losses. The onus in proving a Plaintiff’s failure to mitigate falls on the Defendants, who must prove:
(a) there were steps that the plaintiff could have taken that might have avoided or reduced the loss;
(b) those steps were reasonable; and
(c) the amount by which those steps would have avoided or reduced the loss. (Frers v. De Moulin, 2002 BCSC 408 at para. 217)
The defence must, “present the necessary evidence to raise failure to mitigate from speculation to reasonable inference,” (Chiu (Guardian ad litem of) v. Chiu, 2002 BCCA 618 at para. 66). The Defendants point to the Plaintiff’s failure to seek out additional rehabilitation and psychological counselling services as evidence of a failure to mitigate her losses. However, the Defendants have not made a clear argument as to which award would be reduced, be it her non-pecuniary damages, future earnings losses, past earnings losses, or all of the above.
Additionally, no medical evidence was presented supporting the submission that the Plaintiff would have recovered faster or more fully had she sought additional treatment, nor was there evidence as to “the amount by which those steps would have avoided or reduced the loss,” (Frers at para. 217). As in Chiu, the Defendants failed to present evidence on the impact that treatment would have had on the Plaintiff’s recovery, and any benefits arising from treatment have remained mere speculation, (Chiu at para. 66). Because of this lack of evidence about the nature of the losses which could have been mitigated, and the potential success of such mitigation efforts, the honourable Madam Justice Choi did not find that the Defendants had proven that the Plaintiff has failed her duty to mitigate under the Frers test.
In summary, the plaintiff has been awarded the following:
a) Non-pecuniary damages: $100,000
b) Past loss of income: $35,000
c) Future loss of income: $100,000
d) Loss of future care: $3,335
e) Special damages: $1,335