Mitigation in personal injury claims

Mitigation in personal injury claims

In personal injury claims, claimants have a duty to take reasonable steps to minimise their losses stemming from an accident/illness. This is known as “mitigation”. Examples of mitigation steps that a claimant is expected to take include: seeking timely medical treatment and following treatment recommendations; exploring alternative employment or retraining options available to them if they are unable to return to their pre-accident employment; and avoiding incurring disproportionate or unreasonable expenses.

If a defendant can successfully persuade a court that a claimant has failed to take reasonable steps to mitigate their losses, that claimant can be penalised by way of reduction to their recoverable damages for the part of the loss that could have been avoided. The key issue for determination is the “reasonableness” of the claimant’s conduct.

Seeking timely medical treatment and following treatment recommendations

An interesting recent defence case that I was instructed on involved a claimant who sustained a significant shoulder injury in a workplace accident. The expert evidence was that the shoulder injury would resolve to a nuisance level within a set timeframe if the claimant underwent shoulder replacement surgery. The claimant, however, was obese and therefore was not eligible for the shoulder surgery unless he lost a significant amount of weight, which he had not done. The issue which, therefore, arose was whether the claimant was being unreasonable in not losing weight, as arguably if the claimant underwent the surgery, his shoulder symptoms would vastly improve, which would significantly improve his quality of life and reduce his future losses. 

The claim settled on a commercial basis without further consideration of this issue by a judge. However, if the claim had proceeded to a trial, it is questionable whether the defendant’s mitigation argument would have succeeded in this instance as a judge may well have been sympathetic to potential arguments from the claimant that it would have been very difficult for him to lose weight and/or he had tried but had been unsuccessful. In order to persuade a judge in this scenario that the claimant had failed to mitigate his losses, the defendant would have most likely have had to offer to pay for the claimant to undergo a weight loss programme or instruct a personal trainer, or some other form of weight loss assistance, in the first instance. If the claimant had then refused the defendant’s offer, the defendant’s chances of obtaining a finding from a judge that the claimant had failed to mitigate his losses would have likely increased. This is because a judge may in that scenario have reached the conclusion that the claimant had unreasonably refused assistance from the defendant to lose weight. 

NHS v private medical treatment

Another common mitigation issue touches upon the debate between NHS v private treatment in personal injury litigation. Claimants have a duty to seek prompt medical treatment for their injuries to avoid being accused of failing to mitigate their losses, and if prompt medical treatment is unavailable on the NHS, they often turn to private medical treatment and thereafter seek to recover those private medical expenses from the defendant. 

Each case will be determined on a case-by-case basis, but the general rule is that a claimant has the right to choose to have their treatment on a private basis, especially if it will mean a more expedient resolution of their symptoms, despite the availability of NHS services. The question inevitably comes down to “reasonableness” and whether it is reasonable for the claimant to have incurred medical expenses on a private basis. Generally, the courts’ view is that if a medical expense is reasonable and recommended by an expert, the injured person is not restricted to NHS treatment, and the claimant’s duty to mitigate their loss does not mean that they have to seek NHS treatment to reduce the amount of private treatment expenses they incur.  

Exploring alternative employment or retraining options

In addition, and as referenced above, claimants have a duty to explore alternative employment or retraining options if they cannot return to their pre-accident employment. If a claimant fails to demonstrate that they have taken proactive steps to explore alternative employment options, a court is likely to determine that there has been a failure to mitigate and reduce the claimant’s loss of earnings’ award accordingly. For example, if a court finds that a Claimant failed to mitigate their losses by not returning to work post-injury when the medical evidence opined that they were fit to return, the court would likely calculate the claimant’s loss of earnings as the difference between the claimant’s pre-accident earnings and the earnings the claimant would have earned if they had returned to work. Defendants should therefore request disclosure of specific documentary evidence from the claimant at the appropriate stage to demonstrate that they have searched for and applied for roles/training programmes that fit their post-accident capabilities and/or seek regular updates as to whether the claimant’s employment status and the steps that they are taking to return to the workplace.   

Avoiding incurring disproportionate or unreasonable expenses

Finally, claimants are under a duty to avoid incurring disproportionate or unreasonable expenses. For example, if a claimant breaks his reading glasses in an accident and then purchases much more expensive, designer glasses as a replacement, it is unlikely that a judge would allow recovery of anything more than the cost of the original glasses. In this scenario, a judge would likely say that the Claimant has failed to mitigate his losses by failing to seek a reasonably priced pair of replacement glasses.  

Mitigation cases will be decided on a case-by-case basis. The burden of proving that a claimant has failed to mitigate their losses is on the defendant and any defendant proposing to run this argument should put the claimant on notice as early as possible (via statements of case, open correspondence etc.) of their intention to challenge recoverability of damages associated with their failure to mitigate.  

For any more information on advancing mitigation defences in personal injury claims, please contact the author.