What is the test to apply in determining whether damages should be reduced to account for a plaintiff’s failure to mitigate?

British Columbia, Canada


The following excerpt is from Schryvers v Nasir, 2021 BCSC 846 (CanLII):

The test to be applied in determining whether a damages award should be reduced to account for a plaintiff’s failure to mitigate was conveniently summarized by Parrett J. in Myatt v. Holicza, [2000] B.C.J. No. 1610 (S.C.), at para. 96 as follows: 96. The duty to mitigate rests on any personal injury victim. The burden of proof when a failure to mitigate is alleged rests with the defendant. The defendant, to meet that burden, must establish two things. Firstly, the specific steps which the plaintiff ought reasonably to have pursued to avoid the loss or some portion of it; and, secondly, the extent to which the plaintiff's loss could have been avoided. It is not sufficient to prove that a particular plaintiff was a difficult patient, or that he or she refused certain treatment. They must go further and prove, on a balance of probabilities, that the plaintiff should reasonably have pursued that treatment and that it would have reduced the loss.

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