What is Mitigation of Damages?

When you advance a claim for personal injuries, you request monetary compensation for the injuries that you suffered. The defendant in such a matter wants to make sure that he is only responsible for the injuries caused, and not for more extensive damages that could have been avoided. For example, people bitten by dogs often develop a fear of dogs. When left untreated, dog bite victims may develop post-traumatic stress disorder or an anxiety disorder. Needless to say, there is a big divide in the severity of those two scenarios, and there would be a similar difference in the amount of compensation for those two psychological injuries.

Therefore, in order to strike a balance between the interests of the plaintiff and that of the defendant, the law of Ontario is such that plaintiffs can sue to recover damages, but that they must take reasonable steps to mitigate their damages. This means that a plaintiff has to undergo the recommended treatment for his injuries to receive compensation for the extent of his injuries. If a plaintiff does not undergo the recommended treatment for his injuries, then he may not get compensated for the full extent of the injuries they exhibit, as they may have been less extensive.

Example case – Janiak v Ippolito, [1985] 1 SCR 146, 1985 CanLII 62 (SCC)

Mr. Janiak injured his spine as a result of a motor vehicle accident. He was considered an ideal candidate for surgery which would have likely completely resolved his injury. However, surgery had a 70% success rate. Mr. Janiak refused to undergo a surgery that did not have a 100% success rate. The defendant did not take the Plaintiff’s refusal lightly, and asked that damages for Mr. Janiak’s anticipated income loss be assessed as if he had had this surgery. The Supreme Court of Canada agreed: this was a case where the accident victim was being unreasonable, and the defendant should not have to pay a superior amount because the plaintiff refused to undergo treatment. Therefore, Mr. Janiak’s loss of income was assessed, and then lowered by 70% to mirror the chances that he would have gotten better with surgery.
It is important for plaintiffs to seek treatment for their injuries. Seeking treatment is a win-win situation; the plaintiff has a better chance of getting back into better health, and he also maximizes the damages that he could receive for his injuries.

Our Ottawa dog bite lawyers handle all types of personal injury and accident cases. Our lawyers can ensure you get fair compensation for your injuries.

If you or someone you care about was injured in an accident, please contact one of our lawyers for a free consultation. We work on a no-fee-until-you-win basis. Call us at 613-315-4878.