judgment

Reasons for judgment were released late last week in the case of Lally v. He.  The case concerned the plaintiff’s claim for damages arising as a result of injuries suffered in a car accident that occurred on December 17, 2011.  Liability for the accident was admitted, as was the fact that the accident caused soft tissue injuries to the plaintiff’s neck and low back.  The issues that led to the trial included the severity of the injuries, the impact of the injuries on the plaintiff’s functional abilities and work capacity and whether the plaintiff delayed her recovery and hindered her overall prognosis by failing to follow all treatment recommendations.  It is this last issue, mitigation, that this post will focus on.

In order to establish a failure to mitigate with the resulting reduction to the damages payable to an injured plaintiff, a defendant must establish that the plaintiff acted unreasonably and the extent to which the plaintiff’s damages would have been reduced had she undergone the treatment in question.  In this case, the defense position was that the plaintiff’s withdrawal from chiropractic and physiotherapy treatment and her failure to continue with active rehab was unreasonable and contrary to the recommendations of her general practitioner.  The trial judge agreed with the defense with respect to the plaintiff’s failure to adhere to an active rehabilitation program and exercise regime, finding as follows:

[88]  Ms. Lally has not been as proactive as she ought to have in taking steps to pursue an active rehabilitation program.  She attended a single session before going to India in 2012 but she was not vigilant in keeping up with her exercises while in India, and she did not testify about resuming her exercises in a regular and sustained manner thereafter.  In 2015 she made some efforts to commence active rehabilitation with a kinesiologist but she said it was difficult to schedule the sessions around her work commitments.  I do not find that explanation reasonable.  Her evidence as to the efforts she actually made to contact a kinesiologist, physiotherapist or trainer who could provide her with assistance in developing an active rehabilitation program during her non work hours was very vague and insufficient to support a finding that her work commitments preclude her from following the medical advise she has been given in this respect.

[89]  For these reasons, I find that Ms. Lally failed to mitigate her damages, to some extent, in not pursuing the active rehabilitation program first recommended in February 2012.  Such a program is likely to result in an improvement in Ms. Lally symptoms and I find that she had started the program earlier she likely would have improved more quickly.

The consequence to the plaintiff of this finding by the trial judge is that her awards for non pecuniary damages, past loss of income earning capacity and special damages was reduced by 10%.