The duty to mitigate losses when claiming personal injury
Posted on 22nd November 2017
If a person was involved in an accident, for which they are not to blame, and sustained an injury as a direct result of that accident then they may decide to pursue a claim for personal injury against the negligent party.
When making a claim for personal injury many claimants often ignore that they have a legal duty to mitigate their financial losses.
In addition to compensation for pain and suffering and loss of amenity, also known as general damages, claimants are entitled to be awarded compensation for any financial loss resulting from the accident. The legal duty for claimants to mitigate their losses applies for both general and special damages.
So what exactly is the duty to mitigate? – The law requires claimants to ensure that they take sensitive steps, where possible, to keep their losses down and reasonable. The defendant should not be responsible to pay costs that could have been avoided thus, reasonableness if the guiding principle and the onus of showing a failure to mitigate damages is on defendant.
Below are some instances where claimants should mitigate their losses:
Seeking medical attention following an accident
Claimants have to make sure they take reasonable steps to seek medical treatment as soon as possible in order to assist and speed up their recovery. The duty is therefore beneficial to them as they will recover faster but it should also keep costs to a minimum.
Although claimants will be seen by one or several Experts, it is important for them to understand that the expert they will see, will act as a medico-legal expert and not as a treating consultant. The expert’s main purpose is from a legal standpoint to establish causation between the accident and the injuries sustained as a result of the accident.
In order to avoid defendants’ representatives from criticising claimants, claimants should ensure they seek medical attention via the NHS as soon as possible.
Subject to liability not being an issue or the claimant’s solicitors deeming the prospects of success to be above 51%, a claimant will need to be examined by a medico-legal expert, this is necessary to be able to value their general damages.
During the medical examination, the expert will diagnose the severity of the claimant’s injury and may recommend a course of treatment such as physiotherapy or a course of CBT.
Depending on the case, although a solicitor may arrange the treatment on a private basis, a claimant should always seek the recommended treatment via the NHS to have it free of charge thus, keeping costs to a minimum.
If the claimant delays having the recommended treatment until several months later, they will have failed to mitigate their loss, such failure will be taken into consideration by the defendant’s representatives or a Judge when awarding compensation to the claimant.
Loss of earnings
A claimant may be off work as a result of an injury caused by the defendant’s negligence. If the claimant feels capable to resume work but delays their return to work then the claimant would have not fulfilled their duty to mitigate their loss.
Credit car hire claim
If involved in a road traffic accident a claimant could be left without the use of their vehicle and could be offered a credit hire car by their insurers who then plan to claim the costs back from the third party insurers.
An issue will raise if the claimant’s replacement vehicle is not a like-for-like vehicle but a more prestigious vehicle as this would mean the bill would be more expensive and not proportionate.
Same would apply if there is evidence that the claimant’s insurers could have provided them with a courtesy car under their insurance policy, and that such cars were available, but instead the claimant hired a vehicle on a credit basis. Another instance would be if the claimant relied on a replacement vehicle when they had an alternative vehicle available in their household.
Claimants should be extremely vigilant when entering into credit car hire and remember that the main risk is that they may be personally accountable for the cost of the hire if such cost cannot be recovered from the defendant’s Insurers.
If following an accident an injured claimant relied on taxis to go to work when they could have taken public transport then the claimant failed to take steps to mitigate their loss and they may be prevented from recovering loss which they could reasonably have prevented incurring.
In conclusion, when making a claim for personal injury, a claimant and their legal representatives should ensure that they keep the claim proportionate and reasonable, especially when the defendant will often raise mitigation as an argument to try to limit the amount of loss they should pay the claimant.
The compensation a claimant receives is intended to put them in a position they would have been in had the accident not taken place, it is not intended to put them in a better position. Claimants should therefore ensure they make the effort to minimise their financial losses.
A failure to minimise losses does not automatically mean that the claim is lost however, it means that the claimant could have their compensation affected by that failure, their compensation could be reduced if it is believed they have failed to behave reasonably.