As previously discussed, injured claimants must take reasonable steps to restore themselves to their pre-accident condition, which includes following the advice of their doctors.
In the trial of Warner v. Cousins, the judge found that the Plaintiff failed to mitigate her damages and reduced the award as a result.
The decision was appealed to the Court of Appeal, the result of which was profiled along with our lawyer Wes Mussio’s views in the publication Lawyers Weekly.
The Court of Appeal found the trial judge made “overly specualtive assumptions” about the Plaintiff and failed to provide adequate reasoning in reducing the award. The result is that the trial judge’s decision was overturned and a new trial was ordered.
Asked to comment, Wes Mussio stated that the finding is consistent with recent case law, which has established a clear criteria for establishing a failure to mitigate:
The trial judge also has to set out exactly why there is a reduction, which she didn’t do.
Usually appeals are pretty tough to win but this sort of sets the boudaries that there’s some hope if the judge speculated or didn’t have evidence to support a certain assertion.
It’s a very helpful case, for sure – very plaintiff oriented.