Today’s guest post comes from B.C. injury claims lawyer Erik Magraken
Reasons for judgement were published this week upholding a trial judge’s 50% reduction of damages in a personal injury lawsuit for failure to mitigate.
In the recent case (Mullens v. Toor) the Plaintiff was injured in a 2012 collision caused by the Defendant. The Plaintiff suffered physical and psychological injuries and the Court concluded the Plaintiff’s recovery could have been improved had she more diligently followed medical advice. As a result the Plaintiff’s assessed non-pecuniary damages, loss of earning capacity, loss of pension and deferred profit sharing were reduced by 50% and the future cost of care by 10%.
The Plaintiff appealed arguing the failure to mitigate reduction should only apply to her non-pecuniary damages. The BC Court of Appeal disagreed. In upholding the trial result the Court provided the following reasons:
 Failure to mitigate is a positive allegation that should be pleaded and argued at trial: Hosking v. Mahoney, 2010 BCCA 465 at para. 34. Ms. Mullens thus submits that the judge erred in deciding issues on a basis that was not specifically pleaded or argued before him and properly should have invited counsel to address the claim: see e.g., Carmel Pharmacy Ltd. v. Tri City Contracting (B.C.) Ltd., 2014 BCSC 337 at para. 2.
 In their response to civil claim the respondents pleaded as follows:
The Plaintiff has failed to follow medical advice with respect to treatment or exercise.
The Plaintiff could, by the exercise of due diligence, have reduced the amount of any alleged injury, loss, damage or expense, and the Defendants say that the Plaintiff failed to mitigate her damages.
 The respondents say it is a mischaracterization to say that they did not argue for a reduction across all heads of damages because of a failure to mitigate. A fair reading of the written submissions and the evidence as presented at trial is that mitigation was a key issue for all of Ms. Mullens’ claims.
 In my view, the respondents’ pleading is clearly not deficient. In Saadati v. Moorhead, 2017 SCC 28 at paras. 10‑12, Brown J., for the Court, found that a claim for “general damages for pain and suffering, loss of earning capacity past, present and future, loss of opportunity, loss of enjoyment of life, loss of physical heath…” was sufficiently broad to put the opposing party on notice that the claim encompassed mental injury. Here the pleading is explicit.
 Much of the evidence at trial, both in direct and cross-examination, concerned matters related to the mitigation issue pleaded: the appellant’s failure to return to work, her delay in taking medication, not seeking psychiatric treatment, not having consistent treatment, and the delay in obtaining recommended treatment being a negative factor in her prognosis. These issues were canvassed by both the expert witnesses (Dr. Zoffman, Dr. Finlayson, Dr. Robertson, Dr. Maloon) and lay witnesses (Mr. Gill, Ms. Macpherson, Ms. Percy and Mr. Towsley).
 The issue of mitigation was both specifically pleaded and extensively explored at trial. Experts testified to the mental health benefits of returning to work and the benefits of comprehensive psychiatric treatment. Counsel raised a failure to mitigate in general terms during closing submissions, and made specific reference to the benefits of returning to work, such as improved mental heath. The specific arguments made with respect to a failure to mitigate past loss of income were logically connected to the other heads of damage claimed.
 In my view, it cannot fairly be said that mitigation was not an issue properly before the court with respect to all of Ms. Mullens’ claims for damages. I see no merit to this ground of appeal.