Mitigation in personal injury claims
Posted on 17th August 2016
What is Mitigation?
Mitigation is the act of reducing the severity, seriousness or painfulness of something. In a personal injury claim, mitigation applies to reducing the severity of an injury as well as keeping losses after an accident to a minimum as far as is reasonable.
The Claimant’s duty
Compensation is awarded for the nature and severity of an injury. We work to help individuals obtain the compensation that they deserve following an accident. We do this by obtaining medical evidence and by collating payslips, receipts and invoices to support losses and expenses which have been incurred.
However, there is a duty on claimants to mitigate their losses. Following an accident, aside from concentrating on recovering from the injury itself, there are various decisions and issues for a claimant to deal with. These are wide-ranging and may include considering when to return to work and what treatment to obtain. In a road traffic accident there are additional issues such as whether to hire a vehicle or whether a courtesy car is available.
For each decision which has to be made, a claimant must consider how to keep the losses to a minimum. A claimant is not allowed to recover compensation which could have been avoided by acting reasonably. Every case and every claimants’ individual set of circumstances is different, which means that every case turns on its own facts. As such, the guiding principle is reasonableness; has the claimant acted reasonably in making a particular decision?
Mitigation in practice
- Returning to work following an accident – An example of mitigation is a claimant returning to work as soon as they are able to following an accident. If a medical practitioner advises that an individual can return to work following an accident, the claimant must do so. Should they fail to do so and as a result they continue to incur loss of earnings, the defendant may successfully argue that they have failed to mitigate their losses. This will result in not being able to recover their loss of earnings. If a claimant is not able to return on a full time basis, they may be able to consider returning on a part-time basis. This will show that they are attempting to make every effort to reduce their loss.
- Treatment – The claimant should also seek and actively engage in treatment so as to not prolong their recovery. Should they fail to do so and the defendant successfully argues that if treatment had taken place sooner than a quicker recovery would have been made, the compensation is likely to be reduced.
- Road Traffic Accidents – Mitigation also applies to many decisions which must be taken following a road traffic accident. Hiring an expensive car or a vehicle which is significantly larger and more powerful than what is required are not reasonable approaches. When a courtesy car is offered it should be used and also repairs to vehicles made as soon as possible to in order to prevent ongoing losses including hire and storage charges.
Advice to claimants
Anyone considering making a personal injury claim should be careful and ensure that they control their losses wherever possible. Do not expect the defendant’s insurer to reimburse without question. It is not always straight forward in deciding what course of action should be taken as every case is different; what is considered reasonable for one person may not be reasonable for another. Common sense is needed and reasonableness in keeping losses to a minimum following an accident.