What is the burden of proving that a plaintiff’s considered decision not to undergo spinal fusion surgery is a failure to mitigate?
British Columbia, Canada
The following excerpt is from Gill v Dhaliwal, 2021 BCSC 1562 (CanLII):
The defendants bear the burden of proving that the plaintiff’s considered decision not to undergo spinal fusion surgery at this point in his life is a failure to mitigate. They have failed to discharge the burden: Chiu v. Chiu, 2002 BCCA 618.
The assessment of non-pecuniary damages takes into account the well-established factors from Stapley v. Hejslet, 2006 BCCA 34 at para. 46. An award under this head is intended to compensate the plaintiff for pain, suffering, loss of enjoyment of life and loss of amenities.
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