What is the test for failing to mitigate by refusing to undergo medical treatment?
British Columbia, Canada
The following excerpt is from Jopling v. Brodowich, 2009 BCSC 653 (CanLII):
The test for failure to mitigate by refusing to undergo medical treatment is summarized in Fox v. Danis, 2005 BCSC 102 (aff'd 2006 BCCA 324, 228 B.C.A.C. 164), at paras. 35-37:
There is no dispute that every plaintiff has a duty to mitigate his/her damages, and that the burden of proving a failure to fulfil that duty rests with the defendant, the standard of proof being the balance of probabilities: Janiak v. Ippolito, 1985 CanLII 62 (SCC), [1985] 1 S.C.R. 146.
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