What is the burden of mitigation for the defence in a personal injury case?
British Columbia, Canada
The following excerpt is from Spurgeon v. Smith, 2009 BCSC 1526 (CanLII):
The defence, in their submission, allude to the duty of the plaintiff to mitigate his loss. This is correct, although the burden of proof lies with the defendant to prove that there was a failure of mitigation and, if so, to what degree. See Graham v. Rogers, 2001 BCCA 432, leave to appeal refused (2002), 173 B.C.A.C. 21 (note) (S.C.C.), at para. 35.
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