What is the mitigation defence in medical malpractice cases?

British Columbia, Canada


The following excerpt is from Lo v Vos, 2019 BCSC 1306 (CanLII):

Courts will also consider whether a plaintiff’s capacity to make an objectively reasonable choice with respect to treatment recommendations has been substantially inhibited by their accident-induced injuries: Cassells v. Ladolcetta, 2012 BCCA 27 at para. 26. Where the plaintiff’s depression or a lack of motivation or organizational skills, which they suffer as a result of the accident, impairs their ability to follow treatment recommendations, the courts have rejected the mitigation defence: Pearson v. Savage, 2017 BCSC 1435 at paras. 154-155 and 161-162; Howell v. Machi, 2017 BCSC 1806 at paras. 504-505.

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