The obligation to minimize damage

Readers of our legal capsules no doubt recognize the three elements that must be established to be entitled to a civil liability claim: fault, damage and causation.

On the other hand, even if someone commits a fault that causes you harm, you may not be entitled to compensation if you do not comply with the obligation to minimize your damage.

In this article, Me Lambert explains the content of this obligation using real files as an example.

The theory

According to article 1479 of the Civil Code of Québec, the person who committed the fault will not need to repair the damage if the victim does not take reasonable measures to prevent it from worsening. It is therefore an obligation of means, not of results. This means that the victim is not obliged to guarantee that the harm will not worsen, but he must do everything possible and reasonable to prevent the deterioration of the situation.

This obligation applies to both contractual liability (which arises from a contract) and non-contractual liability (which results from the wrongful conduct of one person towards another, even if there is no contract between them). It is based on the principle of good faith, according to which one must not act in such a way as to deceive or harm anyone.

The obligation to minimize damage can also be explained by the requirement of a causal link (fault must be the direct and immediate cause of the damage) in matters of civil liability. However, if the victim does not take reasonable precautions to prevent the damage from worsening, his omission will constitute a fault distinct from that which caused him the original damage.

For example, your neighbor is negligent when clearing snow from his sidewalk, and because of this, you get injured. You wait several days before seeing a doctor and have complications. You will not be able to claim damages for damages caused by these complications. Your neighbour is not responsible for ensuring that you have adequate medical follow-up.

Case law

Labour law

If you have been dismissed without a serious reason, you have an obligation to minimize your damage by trying to find a similar job or accepting a similar job from the employer.

In this example, Mr. Nepton was suspended without pay following an incident with an employee. Shortly after, his employer offered him a relocation to another position suitable for his qualifications with the same salary conditions for 14 months. Mr. Nepton refused, saying he wanted to return to his former position. The Court found that Mr. Nepton did not minimize his damages because he should have accepted his employer’s offer. However, this is not always the case. If there is a barrier to accepting a position with the same employer that fired you, you are not required to accept it in order to minimize your harm. The Tribunal will analyze what a reasonable person would have done for you.

For example, you won’t be forced to accept a job offer for a position that doesn’t match your qualifications or where working conditions are very different from your previous job.

In addition, you can refuse an offer that will require you to work in a climate of hostility, humiliation or embarrassment. Indeed, you do not need to do degrading work or in a highly unpleasant environment in order to comply with the obligation to minimize its damage.

Hidden defects

In this case, Ms. Dubuc bought Mr. Gagnon’s house and, a few months later, discovered a problem in the sewage field. However, at the time of the trial (almost two years after the discovery of the problem), Ms. Dubuc and her husband had not yet done any repair work.

Citing the obligation to minimize their loss, the Court decided that Mr. Gagnon was only liable to pay the amount that would have been necessary to do the work the first time it should have been done (i.e., two years earlier).

Non-contractual liability

During a party at Mr. Dupuis’ house, Mr. Leblond falls down the stairs and suffers some scratches. He is offered to take him to the hospital, but he refuses, despite the pain he feels. He makes a long road trip and continues to work as if nothing had happened.

In the days that followed, his wounds worsened. When he finally went to a doctor, he was prescribed antibiotics and, although he refused it at first, he eventually had to be hospitalized.

The injury worsens and necrosis, and more aggressive intervention is necessary. Mr. Leblond was unable to work for eleven months.

After reviewing the evidence, the Court decided that Mr. Leblond did not minimize his damages. He waited a very long time before seeing a doctor and continued to live his life as if nothing had happened to him.

On the other hand, according to the doctor’s testimony, if he had been in the hospital immediately after the accident, his absence from work would not have exceeded four to six weeks. The Tribunal therefore awards him damages for two months of incapacity, and not for the eleven months claimed.

This does not mean that you have to accept any treatment offered in order to minimize your damage. You don’t have to accept an experimental drug or high-risk surgery, for example.

Obtaining compensation

As you have seen from reading this article, each case is different. The facts and circumstances of yours can have a big impact on the decision of the courts. In case of dispute, contact our firm.

If you liked this article and want to read more, follow our Facebook page so you don’t miss our weekly legal capsules on different legal topics!