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ASSESSMENT OF DAMAGES - Limiting factors - Duty to mitigate

Monday, January 28, 2019 @ 8:53 AM  


Lexis Advance® Quicklaw®
Action by the 54-year-old plaintiff against his former personal injury lawyer. The plaintiff was injured in an accident in 2008. The defendant was the third lawyer hired by the plaintiff to bring his tort claim arising from the action. The defendants in the tort claim brought an application to dismiss the plaintiff’s action after he failed to attend court-ordered defence medical examinations. At the application, no one appeared on the plaintiff’s behalf because the defendant had been fired one month prior and incorrectly assumed the matter would be adjourned to allow the plaintiff to retain new counsel. The application to dismiss the action was granted. The defendant admitted his negligence and conceded that, subject to mitigation, the plaintiff was entitled to damages of $350,000. The plaintiff had difficulties finding another lawyer who would agree to take on both his tort action and his claim against the defendant. He contacted 46 lawyers without success.

HELD: Action allowed in part. Although somewhat unsophisticated, the plaintiff had the ability to make subjectively reasoned decisions respecting the tort claim. The dismissal of the tort claim greatly diminished the plaintiff’s ability to retain counsel on a contingency fee basis. A reasonable person would have focused on reinstating the tort claim and dealt with the professional negligence claim at a later date if needed. The plaintiff’s claim was reduced by 50 per cent for his failure to mitigate. He was entitled to damages of $175,000.

Lynch v. Ueland, [2018] B.C.J. No. 6802, British Columbia Supreme Court, G.P. Weatherill J., December 4, 2018. Digest No. TLD-January282019001