Mitigation in Personal Injury Claims

What is Mitigation?

In a personal injury claim, mitigation means reducing the severity of an injury as well as keeping losses after an accident to a minimum as far as is reasonably possible.

The Claimant’s duty

Compensation is awarded for the nature and severity of an injury. As a Claimant firm we want to help individuals obtain the maximum 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. That said, there is a duty on Claimants to mitigate their losses.

What does this mean in practice?

• Returning to work following an accident

A Claimant should return 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. If they don’t and as a result they continue to incur loss of earnings, the Claimant may be unable to recover all of their lost earnings.

If a Claimant is not able to return on a full time basis, they could consider returning on a part-time basis or carrying out different work (eg a less physically demanding job following an accident). This will show that the Claimant is attempting to make every effort to reduce their loss.

• Seeking prompt medical attention and rehabilitation

A Claimant should seek medical attention as soon as possible after an accident. In addition, they should also actively engage in rehabilitation so as to not prolong their recovery. Should the Claimant fail to do so and the Defendant successfully argue that if treatment had taken place sooner than a quicker recovery would have been made, the compensation is likely to be reduced.

• Travel

If a Claimant can’t drive after an accident, mitigation could include choosing to use public transport rather than paying for taxis. Following a road traffic accident, if the Claimant’s vehicle has been damaged, mitigation may involve having the car repaired as soon as possible and using a courtesy car.

Reasonableness

Claimants should be careful to ensure that losses are not allowed to run away with themselves and then expect the defendant’s insurer to reimburse them. 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 Claimant may not be reasonable for another. Claimants must use common sense and be reasonable in keeping losses to a minimum following an accident.

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.

If you would like to discuss your personal injury claim and mitigating losses, contact our leading Personal Injury lawyers now on 0330 822 3451 or request a call back.