Mitigation In Personal Injury Claims

Words matter more in the legal context than they do in most aspects of your average person’s day-to-day life.  Sometimes words in a legal context can mean the same thing they do colloquially.  In some instances, words can have different meanings in different areas of law.  One such word is: mitigation.

What Is Mitigation?

The dictionary definition of mitigation is, “the act of reducing the severity, seriousness or painfulness of something”.  In a personal injury lawsuit mitigation is when a Plaintiff (the person making the claim for injury) takes reasonable steps to minimize their losses due to the injury they have suffered and the damages flowing from that.  For instance, if someone is off work for a period due to an injury and then is able and medically cleared to return to work but fails to do so then they have failed to mitigate their wage loss.

One area with this often arises in following a doctor’s advice with medical treatment.  If someone is told by a doctor that if they take a certain medication or partake in a certain form of treatment program that they will enjoy a decrease of their symptoms and restrictions, they need to follow that advice if it is reasonable to mitigate their losses.  If they do not follow that advice the defence can argue that they failed to mitigate their damage and ask a Court to reduce their damage award by a percentage to recognize the recovery and/or improvement which the Plaintiff could have enjoyed had they properly mitigated their losses.

Mitigation Is A Duty

It is important to note that mitigation in the personal injury context is not a mere consideration, it is an obligation.  It is the duty of the Plaintiff in a personal injury action to mitigate their damages.

While often a Plaintiff in a personal injury action has had no say in the accident which resulted in their injuries, they do have a say in how they deal with the fall out afterwards.  They are obligated to take reasonable steps to better their situation as best they are able.  While the Defendant(s) in an action will be responsible for the damages their negligence caused, they are not going to be on the hook for the unreasonable actions of the Plaintiff, whether it’s a failure to follow medical advice, a failure to accept alternative employment or anything else that might factor in to mitigate their damages.

Mitigation Has To Be Reasonable

While there is an obligation for a Plaintiff to mitigate their damages, this obligation is not absolute.  The considerations of reasonableness come into play.

If you are referred for treatment or medication that you simply cannot afford, a Court would be hard pressed to find you failed to mitigate your damages by not putting yourself into bankruptcy.  Treatment for some conditions, like brain injuries, spinal cord injuries and psychological injuries can be extremely expensive and be required over a number of years.  If someone does not have insurance benefits available to help cover the cost of these treatments, they are often out of reach of many.  Even if someone does have insurance coverage, often time insurance can be denied to the detriment of the insured.

Personal Injury Lawyers

If you have an issue with mitigation relating to your personal injury action contact the experienced lawyers at Taylor & Blair LLP today.