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Mitigation, Credibility and Deductions: A Case Comment on Ryan v. Curlew, 2018 NLSC 72
In Ryan v. Curlew, 2018 NLSC 72, the Supreme Court of Newfoundland and Labrador assessed damages in the context of a personal injury claim. In doing so, the court addressed two key factors: mitigation and credibility. It also considered the application of a statutory provision regarding deductions for income related payments.
Ryan was a passenger in a vehicle that was struck by Curlew’s SUV. Ryan’s vehicle was first struck on the passenger side, causing the vehicle to spin. The vehicle was then struck again, sending it into a median. Having found that Curlew was liable for the accident, the court assessed Ryan’s claim for damages.
According to Ryan, she suffered soft tissue injuries resulting in chronic pain, depression, anxiety and post-traumatic stress disorder. The accident occurred in January, 2010. Before then, Ryan had worked as a ship’s clerk on board a vessel in a physically demanding job. Ryan never returned to work and she claimed that, because of the accident, she would never work again.
Mitigation and Credibility
Among other things, Curlew defended by arguing that Ryan had failed to mitigate her loss. The court applied the principles relating to mitigation as set forth in O’Brien v. Cochrane, 2002 NLCA 45, a decision of the Court of Appeal of Newfoundland and Labrador. According to that case, the failure to mitigate is treated as a contingency which is valued as a lost chance. Where a plaintiff fails to mitigate by, for example, refusing to undertake recommended treatment, the plaintiff’s damages should be discounted to reflect the likelihood that the treatment would have eliminated or reduced the plaintiff’s loss.
When mitigation is raised, the court must first determine if the plaintiff failed to mitigate. Second, it must assess the value of the lost chance. As for the first step, the court adopted the following principles from Carlson v. Romanchuk,  3 A.C.W.S. 309 (Ont. Dist. Ct.): the plaintiff is obliged to mitigate her damages; the plaintiff cannot claim that she cannot afford to mitigate; the plaintiff is only required to act reasonably; whether a plaintiff acted reasonably is a question of fact; and the defendant has the onus of proving that the plaintiff failed to mitigate.
As for the onus of proof, the court noted that Curlew had not adduced evidence to challenge Ryan’s claims. Nevertheless, according to the court, it could draw appropriate inferences particularly from the cross-examination of Ryan and her witnesses. In the end, the court determined that Ryan had failed to follow the recommendations of a number of physicians. The court found that Ryan had failed to: regularly consult with a psychiatrist; take anti-depressant medications; and participate in an exercise program. According to the court, Ryan “availed of some of these therapies but only those that she wants to avail of and only when she wants to do them”. Having concluded that Ryan failed to mitigate her loss, her damages were reduced, but by a relatively modest 10%.
It is noteworthy that the treatment recommendations were not necessarily made by Ryan’s own physician. Rather, they were made by a number of physicians retained (by Ryan’s accident benefits insurer, her disability insurer, and by Curlew’s insurer) to conduct independent medical examinations.
In assessing the validity of Ryan’s assertion that she had mitigated her loss, the credibility of both Ryan and her family doctor were critical. As for the family doctor, the court had concerns about her impartiality. At times, the doctor “appeared more as an advocate for Ms. Ryan than a physician”. As for Ryan, her claim was largely subjective with no objective evidence to even confirm a soft tissue injury. As a result, her credibility was highly significant. In the end, the court had reservations about her trustworthiness. Ryan’s claim was described as “disingenuous and unconvincing”. According to the court, she “minimized the positive aspects of her life since the accident and exaggerated the negative aspects, possibly to enhance her claim”. Additionally, the court noted that Ryan “deliberately withheld” information about a number of vacations that she had taken after the accident.
Deductions for Payments for Loss of Income or Loss of Earning Capacity
Following the accident, Ryan received: loss of income payments under the accident benefits section of her automobile insurance policy; Canada Pension Plan (“CPP”) disability benefits; and long-term disability benefits. She eventually settled her claim for long-term disability payments for a lump sum.
Curlew sought a deduction for these payments and relied on s. 26.5 of the Automobile Insurance Act, RSNL 1990, c. A-22. That section provides that a plaintiff’s damages for “loss of income and loss of earning capacity shall be reduced by all payments in respect of the incident that the plaintiff has received or to which the plaintiff is entitled, for loss of income, or loss of earning capacity, under the laws of this province or another jurisdiction, or under an income continuation benefit plan where, under the law or plan, the provider of the benefit retains no right of subrogation”.
In Tibbetts v. Murphy, 2017 NSCA 35, the Nova Scotia Court of Appeal considered a similar statutory provision. It held that the plaintiff’s CPP payments were “in respect of the incident”. But for the collision, the plaintiff would not have applied for and received CPP disability benefits. As a result, the payments were deductible.
Although not bound by Tibbetts v. Murphy, the Supreme Court of Newfoundland and Labrador described the decision as persuasive, and concluded that Ryan’s injuries were “inseparable” from the collision. Ryan “made it patently clear … that she was unable to work because of the injuries she sustained in the accident”. According to the court, Ryan received the payments “in respect of the motor vehicle accident … and for no other reason”. As a result, the court deducted the past payments from the award for past loss of income. As for the award for loss of future earning capacity, the court deducted the lump sum payment received in settlement of the long-term disability claim. The decision, however, contains no specific comment regarding any additional deductions for future CPP payments or future loss of income amounts payable under Ryan’s automobile insurance policy.
The decision in Ryan v. Curlew is significant for a number of reasons. First, it confirms the principles relating to mitigation in an assessment of damages for personal injuries. Second, it highlights the significance of credibility in assessing whether a plaintiff failed to mitigate the loss. Third, it applies the holding of the Nova Scotia Court of Appeal in Tibbetts v. Murphy in the context of s. 26.5 of the Automobile Insurance Act.