In any auto accident case, the defence may invoke two legal principles designed to shift blame away from their own negligence and towards the plaintiff: contributory negligence and failure to mitigate damages.
In British Columbia, contributory negligence refers to the “apportionment of liability for damages” between two or more people as against the plaintiff. In other words, contributory negligence is the percentage of fault attributable to the plaintiff’s own actions (or inactions)—or the extent to which the plaintiff was at fault in causing his or her own injuries.
Similarly, the defence may argue that the plaintiff “failed to mitigate” his or her damages. This refers not to the accident itself but instead the actions the plaintiff allegedly neglected to take afterwards.
B.C. law expects accident victims to take “reasonable” steps to offset their losses following an accident. This includes seeking timely medical treatment and, if the plaintiff cannot return to his or her previous job due to injuries, looking for alternative employment. If a judge or jury finds there was a failure to mitigate, it may reduce the defendant’s obligation to compensate the plaintiff accordingly.
On July 10, 2018, the B.C. Court of Appeal issued a judgment in Rhodes v. City of Surrey. This lawsuit arose from a single-car accident in Surrey. The plaintiff alleged the City of Surrey’s negligence caused the accident—specifically, by failing to address hazardous road conditions on the day in question.
The accident itself took place almost a decade ago, on December 14, 2009. The plaintiff was driving to work at the time. She approached a four-way intersection at 80th Avenue and 192nd Street in Surrey. The plaintiff testified that she was travelling at a normal speed toward the intersection when she applied her brakes.
However, instead of coming to a stop, the vehicle “began to slide to her right” and toward a gas station. Ultimately, the car collided with a concrete pedestal that was part of the station.
There were no witnesses to the accident aside from the plaintiff herself. As noted above, the plaintiff sued the City of Surrey, alleging its negligent road maintenance caused her vehicle to slide off the road and into the gas station. The City denied liability, and argued that even if it was negligent, the plaintiff was contributorily negligent and failed to mitigate her damages.
The case was tried before a jury, which heard testimony from several witnesses who, although they did not see the plaintiff’s accident, travelled through the same intersection that morning without incident.
For example, one man testified that 80th Avenue was “icy” that morning and “it was slippery” at the intersection with 192nd Street, but he “did not lose control” of his vehicle. Another driver testified that he “touched the brakes and slid through the intersection,” but again did not lose control or collide with another object.
The plaintiff presented an expert witness, an accident reconstruction engineer. The expert testified that while the City applied “anti-icing brine” to the road earlier that morning, the road surface refroze prior to the accident “because the brine was overwhelmed by additional snowfall.”
In the expert’s opinion, the City was negligent by failing “to follow up with plowing and salting to prevent a re-freeze.”
The City, however, argued the plaintiff was the negligent party here because she failed to exercise appropriate care while driving. During closing submissions to the jury, the City’s counsel pointed to the testimony of the other witnesses who safely crossed the same intersection and invited the jury to “infer” the plaintiff was “at least partially at fault” for somehow “failing to exercise ordinary care for her own safety.”
But the City failed to present any direct evidence of the plaintiff driving unsafely. The plaintiff herself testified that she was driving no more than 20 kilometres per hour–which the City did not refute–and she had snow tires on her car.
Despite the City’s inability to point to any specific thing the plaintiff did wrong, the jury nevertheless returned a verdict holding her 75% liable for the accident. This still left the City on the hook for 25% of the plaintiff’s damages. But the jury went on to find the plaintiff “failed to mitigate” her damages and reduced the damage award an additional 75%.
The Court of Appeal declined to second-guess the jury’s findings on contributory negligence. While acknowledging the lack of direct evidence, the Court said the jury was entitled to make its finding based purely on the “circumstantial evidence,” notably the testimony of the “other drivers being able to maintain control of their vehicles despite the road conditions.”
While the judges themselves might disagree with the jurors’ assessment of this evidence, the jurors were nonetheless entitled to reach the conclusion they did.
As for the issue of mitigation, the Court of Appeal was not as deferential. Like contributory negligence, the burden is on the defence to prove that the plaintiff did not take reasonable steps to mitigate her damages, such as failing to follow a course of treatment recommended by her treating physician.
That was not the case here. To the contrary, the Court of Appeal cited the evidence of the plaintiff’s primary doctor, whose records indicated that the plaintiff had “followed his medical advice throughout” the period following the accident and “was compliant in taking medication prescribed to her.”
The City did not challenge this testimony. Instead, it pointed to its cross-examination of a second doctor who testified as an expert witness for the plaintiff. The defence attempted to show through its questioning that there was another potential treatment the plaintiff could have pursued to deal with her injuries.
The Court of Appeal said such speculation did not prove a failure to mitigate, since no doctor ever actually prescribed the defence’s alternative treatment to the plaintiff and there was no evidence such a treatment would have actually reduced her damages.
If you are seriously injured in a car accident, do not assume the negligent parties will accept responsibility without a fight. As cases like the one above illustrate, well-funded defendants are far more likely to try and blame you for your injuries. This is why it is so critical to work with a qualified Surrey auto accident lawyer who will look out for your best interests.
Contact the Preszler Law Firm today to schedule a free consultation with a member of our legal team to discuss your accident and how we can best help you.