What is the test for a failure to mitigate a plaintiff's injury?
British Columbia, Canada
The following excerpt is from Antoniali v. Massey, 2008 BCSC 1085 (CanLII):
In Gibbs v. Skemp, [1998] B.C.J. No. 680 (S.C.) Bennett J. reduced a plaintiff’s damages by 10% for failure to mitigate. She said (para. 58): I find that the plaintiff failed to follow the exercise program that was recommended. I accept that she did some walking, but by and large she maintained a sedentary life-style that has been confirmed by the medical evidence. This was likely the worst thing she could do in terms of achieving recovery. She has an obligation to assist in her recovery, even if it meant becoming more physically active than before. The burden of establishing a failure to mitigate is on the defendant. I find that the defendant has met the onus in this case that the plaintiff did not take all reasonable steps towards her recovery.
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