The Price of God

Understanding Reason and Religion in the Duty to Mitigate

Abstract

Tortfeasors have a responsibility to take their victim as they find them, and victims of tort have a duty to mitigate their damages. Nestled between these two legal principles is a situation where a victim of tort refuses medical treatment following injury on the basis of religious conviction. This paper addresses and predicts possible legal outcomes in this undetermined area of Canadian legal jurisprudence. This paper asks to what extent the thin skull principle in tort embraces a plaintiff’s religiously motivated decision to refuse medical treatment following injury. Ultimately, it is more likely than not that the religious thin skull will be supported by Canadian courts. This is necessary due to Canada’s commitment to Charter values and the realities of living in a multicultural society that values both freedom of religion and equality under the law. However, while it is likely that religious refusal of medical treatment will be treated as a religious thin skull rather than a failure of the duty to mitigate, this would likely be limited to cases where the refusal falls within foreseeable religious requirements that would necessarily exist within a multicultural society.