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The Importance of Mitigation

I mentioned in a recent blog the duty that an injured person has to mitigate their loss.I have had many clients ask what I exactly mean by this and I therefore wish to explain what is required. Where a person is involved in, for example, a road traffic accident, they are of course subject to establishing liability and causation (the link between the injury and the accident, namely that the accident was causative of the injury sustained) in order to be entitled to compensation.They are also entitled to claim all losses, namely monetary loss, loss of earnings, expenses incurred that have arisen as a direct result of the injuries sustained and which have been reasonably incurred. The injured person also has a duty to mitigate this loss. This duty is to reduce their losses to the greatest extent possible by their actions. This does not mean that the injured person must try by all means possible to return to work and thereby prevent any loss of earnings occurring. The Court will only expect the injured person to mitigate their loss to such extent as is reasonable and if therefore the injured person has broken their leg for example, a Court will not expect that person to return to work the following day or even a week or so later. The easiest way of looking at mitigation is to look at the converse. By this I mean that if you ask whether it is reasonable that the injured person who has broken their leg to still be off work some 12 months after the accident then subject to any complications, any reasonable consultant or indeed a Judge is likely that say that it must surely be unreasonable. What, therefore is reasonable? This depends very much on the circumstances. If a person makes such attempts to return to work as they are capable of doing by, say 8 weeks post broken leg, this I am sure would be extremely reasonable to most consultants (subject as I say, to any complications, the extent of the injuries, whether any pins or plates have been fitted etc.). The duty to mitigate is not considered to be onerous. In other words, it is more so for the Defendant to establish that the Claimant has failed to mitigate his loss rather than the burden being upon the Claimant. If the Claimant can therefore show that they had carried out such reasonable steps, they are likely to discharge the requirement they have to show they have mitigated their loss and thereafter the burden should be on the Defendant to establish that they have failed to do so. I normally spend some time explaining the issues of mitigation to my clients. I do so in particular as it is very important and is likely to impact upon the value of their claim. In addition, my clients can then take such steps as are reasonable to assist not only their claim but also the Court in deciding the correct value of their claim and which would then prevent the Defendants from raising any arguments that the injured party had failed to mitigate their loss and should be penalised as a result. It is not to be forgotten that the claim would not be brought if an injury had not occurred. Therefore whilst Judges are realistic when considering mitigation, they will not do so in an onerous manner and should, in the majority of cases, accept sympathetically that an injury has occurred and that losses have arisen as a result.Tristan Hallam is a partner in Personal Injury in the London office of Russell Jones & Walker. If you or a member of your family has suffered an accident or injury call our expert personal injury solicitors on 0800 916 9046, or email enquiries@rjw.co.uk and one of our specialist personal injury team will review your compensation claim for free.

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