What is the test for a reduction of 5% for failure to mitigate in the award for Past and Future Income Loss?
Saskatchewan, Canada
The following excerpt is from Gurney v. Salmon, 1999 CanLII 12240 (SK CA):
The appellant claims the 5% reduction for failure to mitigate was too low. She criticizes the respondent for discontinuing physiotherapy, however, she fails to consider the respondent’s evidence of her continuing her exercise program at home. The appellant bore the burden of establishing the steps the respondent ought to have taken to avoid or reduce the loss and the extent to which the loss encountered could have been averted. See Asamera Oil Corporation v. Sea Oil and General Corporation et al., 1978 CanLII 16 (SCC), [1979] 1 S.C.R. 633. The trial judge’s reduction of 5% for failure to mitigate is supportable on the evidence. Therefore, I see no basis on which to interfere with the trial judge’s assessment of the injuries, the award for non-pecuniary damages and his application of a reduction of 5% for failure to mitigate. Award for Past and Future Income Loss
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