How has the court applied the principle that a plaintiff must mitigate his or her loss?

In Humphrey v. Rancier Estate, [1985] B.C.J. No. 835 (S.C.), McLachlin J. discussed the application of the principle that a plaintiff is under a duty to mitigate his or her loss: Another issue in assessment of damages, both non-pecuniary and pecuniary, is the plaintiff’s alleged failure to mitigate. The plaintiff has followed all her medical advice with the exception of reducing her weight. She was grossly obese before the accident, weighing about 260 pounds; she is not quite five feet tall. She now weighs over 200 pounds and continues to be grossly obese. There is no doubt on the medical evidence and the evidence of the therapists that her disability and pain would be less if she lost a considerable amount of weight. The question is whether the plaintiff has taken reasonable steps to minimize her loss. The court must assess whether this test has been met by looking at all the circumstances of the case. Here we have an obese lady before the accident – someone who had been obese all her adult life. Her brother and sister are both obese. She appears, as her counsel put it, to be a weak woman in the sense that she has not had very good success at controlling her smoking or her eating on a consistent basis in the past despite medical advice and despite her clear efforts. She has tried to lose weight and has succeeded to an extent, at least temporarily. She is still trying, she says. Of equal importance to the principle that the plaintiff must act reasonably in minimizing her loss and her damages, is another principle, namely that the defendant takes his victim as he finds him or her. In the circumstances in this case, given the plaintiff’s pre-accident history of obesity, given her particular personality, given her honest efforts from time to time to lose weight and kept it off, I am not satisfied that it can be said that the plaintiff has acted unreasonably and has failed to mitigate her damages, with the result that her damages should be lessened because she has not lost weight.

In Savage v. Townsend, [1998] B.C.J. No. 2190 (S.C.) Holmes J. considered the reasonableness of the actions of a plaintiff’s who was alleged to have failed to undertake and adhere to regular exercise programs recommended by her doctors. He said (at para. 89 - 90): A defendant who injures a plaintiff is not entitled to expect perfection from the injured person in pursuing rehabilitation. The plaintiff must be reasonable and sincere in her efforts to promote recovery. The plaintiff was less than perfect, and undoubtedly paid a price in pain and discomfort on occasion. I accept however the plaintiff met a reasonable standard of care concerning exercise with regard to her own rehabilitation. The defendant has not met the onus of proof required for the plaintiff to be found to have contributed to her own damages. In the assessment of her non-pecuniary damages however I have taken account of the need for the plaintiff to follow an almost daily regime in the future and assumed she will benefit accordingly.

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.