The term “damages” is a lawsuit term meaning the pecuniary losses that a person (“the plaintiff”) suffers as a result of the conduct of another person (“the defendant”). The term “mitigation” in the law of damages means the reduction of this loss and refers to the conduct of the plaintiff that diminished or might have diminished the loss. The basic rule of mitigation is that the plaintiff is not entitled to compensation for a loss that could have been avoided by taking reasonable action. Underlying this rule is the principle of causation. Losses that could reasonably have been avoided are losses caused by the plaintiff’s failure to take the steps to avoid those losses. Those losses are viewed as losses not caused by the defendant. Thus, the plaintiff has a “duty to mitigate” but the burden is on the defendant to show that the plaintiff acted unreasonably in failing to mitigate the loss.
An example from the case law illustrates the duty to mitigate. This was a personal injury case where the plaintiff suffered a whiplash. The court stated: “With respect to general damages, she suffered a standard whiplash injury from which she suffered considerably for a period of about a year. She has no permanent disability. There is evidence that she discontinued wearing the cervical collar and discontinued therapy treatments due to pressures imposed on her by a supervisor. It was open to her to go to her Union executive to file a grievance against her supervisor’s conduct in telling her to either give up her therapy or give up her job. She did not take such action although it was available. The defendant cannot be held responsible for this problem . . . The evidence is clear that the physiotherapy treatments she was receiving at the Rehabilitation Centre and the wearing of the collar was assisting her recovery. She discontinued taking the prescribed treatment and to this extent failed to mitigate her damages . . . I would assess general damages for pain and suffering at $3,000.00. In arriving at this figure, I have taken into consideration her failure to mitigate. The total of the special [loss of wages] and general damages is therefore $ 7,209.92, of which the plaintiff shall recover from the defendant 70%; that is, $ 5,046.94.” In this case, there was an issue of the plaintiff’s contributory negligence which reduced the total damages by 30%. Did the plaintiff act unreasonably in failing to file the grievance?
