The plaintiff in the case of Battagliola v. Wal-Mart Canada Corp, 2011 BCSC 784 suffered an injury to her right knee as a result of being hit with a metal shelf. The injury failed to fully resolve, leaving Ms. Battagliola with discomfort in her right knee. The medical evidence in the trial indicated that Ms. Battagliola suffered patellofemoral syndrome that would cause irritation to her knee “indefinitely”.
Mr. Justice Masuhara assessed damages for pain, suffering and loss of enjoyment of life at $28,000 saying as follows:
In considering the circumstances of this case, the age of Ms. Battagliola; the period of time over which her condition has continued; the medical evidence of Dr. Pisesky that symptoms will continue on indefinitely but that they can be controlled to a certain extent by his recommendations and that there should be a noticeable benefit with orthotics; and my finding that her pain is not as debilitating as indicated in the plaintiff’s case, I assess non-pecuniary damages as $28,000.
Additional amounts were awarded for Ms. Battagliola’s special damages and cost of future care.
Failure to Mitigate:
At trial, the lawyer for Wal-Mart argued that Ms. Battagliola failed to take reasonable steps to lessen the damages sustained as a result of her injury. The judge rejected the argument and, in doing so, said the following:
The defendant submits that the plaintiff failed to take reasonable steps to mitigate her damages. The argument appears to be focused on Ms. Battagliola’s reliance on non-modern medical solutions in treating herself shortly after the incident and her lack of action when she returned to Canada when it is submitted that she had the means to obtain treatment. I am not persuaded that Ms. Battagliola failed to mitigate. In this case, Ms. Battagliola hoped that she would recover within a few months of the incident. This was reasonable. Her efforts at self-treatment were to address her pain. When things did not progress, she went to a physician and followed the recommendations by attending physiotherapy. Things then seemed to be overtaken by her marriage and move to California where she lived in marginal circumstances. Upon her return, she had little in terms of means and was attempting to reset her life. She paid out-of-pocket for her appointments to Dr. White while she awaited BC health coverage. The defendant has not met the evidential burden in regard to the failure to mitigate.
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