The Importance of Mitigation: Don’t be the Author of Your Own Misfortune


In the case of Ksiazek v. Newport Leasing Ltd., the Plaintiff was sitting in the passenger seat of her friend’s car about to make a left hand turn. Suddenly and with little warning, a pick up truck coming from the opposite direction abruptly turned into the front of the Plaintiff’s car.  The Plaintiff suffered several injuries including two fractured fingers, which required the insertion of pins accompanied by a cast. She also suffered lower back pain, a fractured sternum, soft tissue injuries, and depression amongst several other injuries. The Defendant admitted fault.

At trial, a substantial portion of the Plaintiff’s claim was for compensation relating to Past Income Loss and for Pain and Suffering.

The court awarded the Plaintiff compensation for each of these. However, the court noted the Plaintiff’s failure to mitigate her losses.  As such, it awarded her 25% less than what she would have been entitled to.This decision makes clear that the person seeking compensation for their injuries must take the reasonable steps required preventing their injuries from becoming more severe. This means following the advice and recommendations of medical practitioners is crucial.  In this case, the Plaintiff failed to attend on numerous medical specialist appointments and did not follow up on programs for chronic pain control as recommended by her physician.  The Plaintiff took prescribed medication for only a short period before stopping it without advising her doctor. She also stopped other drugs for her headaches despite reporting that it was effective at reducing headaches. The Plaintiff also refused to pursue pain injections and acupuncture despite being recommended by her doctors. The Plaintiff failed to take advantage of special accommodations at school, which would have allowed her to graduate faster and enter the workforce sooner. She also failed to pursue tutoring services available and did not seek advice on career choices and on further schooling despite being advised to do so by vocational specialists. She only attended 10 of 20 recommended Psychotherapy sessions as well. The plaintiff also failed to attend the Hand Therapy Clinic for all of her recommended treatment sessions.

The Plaintiff took the position that she was not fully capable of participating in her treatments given her physical and psychological condition caused by the accident.  Specifically, the Plaintiff stated that her fatigue, lack of motivation, depression, anxiety and other symptoms from the accident prevent her from committing to regular treatment.

The court stated that pre-existing conditions might excuse the failure to mitigate, but that conditions developed after the injury will not. However, in this case, all the injuries developed after the accident. As such, there was no excuse for her not to mitigate her damages. It was also determined that the onset of the Plaintiff’s depression came well after missing several appointments ruling that out as a reason for not mitigating.

The court then went on to say that if the symptoms complained of would have been reduced by a determined percentage if proper treatment were followed, then damages awarded should be reduced by that amount if treatment is not followed.

In the end, the court was of the view that the Plaintiff should not be entitled to recover compensation for damages that she herself could have avoided by taking reasonable steps. The Plaintiff was essentially seen as the author of some of her misfortune.

The takeaway point here is to recognize that after an injury, the following up with doctors and specialists and listening to their advice is key. Failing to do so may limit your award at trial.


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