Janiak v. Ippolito (1985), 57 N.R. 241 (SCC)
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[French language version follows English language version]
[La version française vient à la suite de la version anglaise]
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Janiak v. Ippolito
Indexed As: Janiak v. Ippolito
Supreme Court of Canada
Ritchie, Dickson, Estey, Chouinard and Wilson, JJ.
March 14, 1985.
Summary:
The plaintiff was injured in a rear end collision from the defendant’s admitted negligence. The plaintiff’s main injury was a disc protrusion of the cervical spine. Corrective surgery offered a 70% chance of complete recovery. However, the plaintiff had a great fear of surgery and refused to undergo it and consequently remained unable to work. The Ontario High Court found that the plaintiff acted unreasonably in refusing to undergo the recommended surgery and terminated his damages for loss of income at the date at which the plaintiff probably could have returned to work, if he had undergone surgery. The plaintiff appealed.
The Ontario Court of Appeal in a judgment reported 34 O.R.(2d) 151 refused to disturb the finding that the plaintiff had acted unreasonably, but allowed the appeal on quantum of damages. The Court of Appeal took into account the fact that the recommended surgery entailed only a 70% chance of success and adjusted the award for loss of income upward accordingly. The plaintiff appealed.
The Supreme Court of Canada dismissed the appeal, refusing to disturb the finding of unreasonableness and approving the Court of Appeal’s method of determining the damage consequences of the plaintiffs refusal to undergo surgery, namely, that 70% of total loss of income was avoidable and so full compensation should be discounted by 70%. The Supreme Court of Canada took the opportunity to analyze and clarify the law of the thin skull rule and mitigation of damages in personal injury cases.
Damages – Topic 595
Limits of compensatory damages – Predisposition to damage – Personal injuries – Victim’s mental condition – Because of a great fear of surgery a plaintiff refused to undergo a spinal fusion to correct a disc protrusion with a 70% chance of complete recovery – The Supreme Court of Canada refused to disturb a finding by the trial judge that the plaintiffs refusal to undergo surgery was unreasonable and affirmed the discounting of full compensation by 70% as a result of the plaintiff’s failure to mitigate by undergoing surgery.
Damages – Topic 595
Limits of compensatory damages – Predisposition to damage – Personal injuries – Victim’s mental condition – Fear of surgery caused disabled plaintiff to refuse to undergo corrective surgery with 70% chance of complete recovery – In upholding the finding that the plaintiff unreasonably refused to undergo surgery the Supreme Court of Canada discussed the thin skull rule – The court held that a person falls in the thin skull category if his mental condition preexists the defendant’s negligence (see paragraphs 12 to 23) and the plaintiff lacks capacity to make a reasonable choice (see paragraphs 24 to 26) – The court held that in determining whether a plaintiff is unreasonable where there are conflicting medical opinions, a plaintiff is not unreasonable if he follows any one of several courses recommended by medical advisors – The degree of risk, the gravity of the consequences of refusing treatment and the potential benefits to be derived from treatment are also pertinent – See paragraphs 27 to 31.
Damages – Topic 1002
Mitigation – Duty to mitigate – The Supreme Court of Canada generally analyzed and explained the duty to mitigate damages, stating that it derives from the general proposition that the plaintiff cannot recover from the defendant damages which he could have avoided by the taking of reasonable steps – The court noted that the notions of novus actus interveniens and proximate cause are unhelpful in characterising the duty to mitigate – See paragraphs 36 to 38.
Damages – Topic 1011
Mitigation – In tort – Personal injuries – Treatment for – Because of a great fear of surgery, an injured and disabled plaintiff refused to undergo corrective surgery offering a 70% chance of complete recovery – In upholding a finding that the plaintiff unreasonably refused to undergo surgery the Supreme Court of Canada discussed the duty of an injured plaintiff to mitigate his damages in the context of the thin skull rule – The court held that the plaintiff’s fear of surgery would absolve him of a duty to mitigate if it pre-existed his injury and rendered him incapable of making a reasonable choice – See paragraphs 12 to 26 – The court held that in determining whether a plaintiff is unreasonable, where there are conflicting medical opinions, a plaintiff will not be held to be unreasonable if he follows any one of several courses recommended by medical advisors – The degree of risk to a plaintiff from treatment, the gravity of the consequences of refusing treatment and the potential benefits to be derived from treatment are also pertinent – See paragraphs 27 to 31.
Damages – Topic 1084
Mitigation – Evidence – Burden of proof – The Supreme Court of Canada held that the burden was on the defendant to show that a plaintiff unreasonably failed to mitigate damages – See paragraphs 32 to 35.
Cases Noticed:
Steele v. Robert George and Company (1937) Limited, [1942] A.C. 497, appld. [para. 7].
Hay or Bourhill v. Young, [1943] A. C. 92, consd. [para. 9].
Bishop v. Arts & Letters Club of Toronto (1978), 83 D.L.R.(3d) 107 (Ont. H.C.), consd. [para. 9].
Love v. Port of London Authority, [1959] 2 Ll. R. 541 (Q.B.), consd. [para. 10].
Cotec’s Estate v. Izquierdo’s Estate, [1983] 2 S.C.R. 2; 51 N.R. 42, consd. [para. 10].
Malcolm v. Broadhurst, [1970] 3 All E.R. 508, consd. [para. 10].
Dulieu v. White & Sons, [1901] 2 K.B. 669, consd. [para. 10].
Blackstock v. Foster, [1938] S.R. (N.S.W.) 341, consd. [para. 12].
Smith v. Leech Brain & Co. Ltd., [1962] 2 Q.B. 405, consd. [para. 12].
Marcroft v. Scruttons, Ltd., [1954] 1 Ll. R. 395 (C.A.), consd. [para. 14].
Elloway v. Boomars et al. (1968), 69 D.L.R.(2d) 605 (B.C.S.C.), consd. [para. 18].
McGrath v. Excelsior Life Insurance Co. (1974), 6 Nfld. & P.E.I.R. 203 (Nfld. T.D.), consd. [para. 19].
Morgan v. T. Wallis Ltd., [1974] 1 Ll. R. 165, consd. [para. 20].
Asamera Oil Corp. v. Sea Oil & Gen. Corp., [1979] 1 S.C.R. 633, consd. [para. 28].
British Westinghouse Electric and Manufacturing Co. v. Underground Electric Railway Company of London, [1912] A.C. 673 (H.L.), consd. [para. 28].
Banco de Portugal v. Waterlow and Sons, Ltd., [1932] A.C. 452, consd. [para. 28].
Savage v. T. Wallis, Ltd., [1966] 1 Ll. R. 357 (C.A.), consd. [para. 29].
McAuley v. London Transport Executive, [1957] 2 Ll. R. 500 (C.A.), consd. [para. 29].
Darbishire v. Warran, [1963] 1 W.L.R. 1067 (C.A.), consd. [para. 30].
Harlow & Jones, Ltd. v. Panex (International), Ltd., [1967] 2 Ll. R. 509, consd. [para. 30].
Taylor v. Addems and Addems, [1932] 1 W.W.R. 505 (Sask. C.A.), consd. [para. 31].
Masny v. Carter-Hall-Aldinger Co. Ltd., [1929] 3 W.W.R. 741 (Sask. K. B.), consd. [para. 31].
Matters v. Baker and Fawcett, [1951] S.A.S.R. 91 (S.C.), consd. [para. 31].
Michaels v. Red Deer College, [1976] 2 S.C.R. 324; 5 N.R. 99, appld. [para. 32].
Buczynnski v. McDonald, [1971] 1 S.A.S.R. 569, consd. [para. 33].
Plenty v. Argus, [1975] W.A.R. 155, consd. [paras. 34, 41].
Selvanayagam v. University of the West Indies, [1983] 1 All E.R. 824, not folld. [para. 35].
Newell v. Lucas, [1964-65] N.S.W.R. 1597, consd. [para. 41].
Mallett v. McMonagle, [1970] A.C. 166, appld. [para. 42].
Davies v. Taylor, [1972] 3 All E.R. 836 (H.L.), consd. [para. 42].
Schrump et al. v. Koot et al. (1978), 18 O.R.(2d) 337, consd. [para. 42].
McCarthy v. MacPherson’s Estate (1977), 14 Nfld. & P.E.I.R. 294; 33 A.P.R. 294 (P.E.I.C.A.), consd. [para. 43].
Authors and Works Noticed:
American Jurisprudence (2nd Ed.), vol. 22, p. 52 [para. 38].
Cooper-Stephenson and Saunders, Personal Injury Damages in Canada (1981) [para. 26].
Dobbs, Law of Remedies (1973), p. 580 [para. 26].
Fleming, Law of Torts (6th Ed. 1983), p. 226 [para. 24].
Counsel:
Brendan O’Brien, Q.C., for the appellant;
William Morris, Q.C., Rhona Waxman and Kim Carpenter-Gunn, for the respondent.
This case was heard on December 12, 1983, at Ottawa, Ontario, before Ritchie, Dickson, Estey, Chouinard and Wilson, JJ., of the Supreme Court of Canada.
On March 14, 1985, Wilson, J., delivered the following judgment for the Supreme Court of Canada, in which Ritchie, J., did not take part:
