Can mitigation be mitigation in a personal injury action?
Alberta, Canada
The following excerpt is from Klewchuk v. Switzer, 2001 ABQB 316 (CanLII):
It is open for a trial judge to make findings in regard to mitigation from the facts presented. In Red Deer College v. Michaels, supra, Laskin C.J. stated at 331: If it is the defendant’s position that the plaintiff could reasonably have avoided some part of the loss claimed, it is for the defendant to carry the burden of that issue, subject to the defendant being content to allow the matter to be disposed of on the trial judge’s assessment of the plaintiff’s evidence on avoidable consequences.
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