Mitigation in personal injury claims
Produced in partnership with Tom Pacey of 12 King's Bench Walk

The following PI & Clinical Negligence practice note produced in partnership with Tom Pacey of 12 King's Bench Walk provides comprehensive and up to date legal information covering:

  • Mitigation in personal injury claims
  • Basic principles
  • Test to be applied
  • Cost of mitigation
  • Expenses
  • Loss of earnings
  • Claimant mitigated their loss
  • Failure to mitigate
  • Pain, suffering and loss of amenity
  • Treatment

Mitigation in personal injury claims

Basic principles

The basic principles of mitigation are:

  1. damages cannot be recovered in respect of losses which could have been avoided by taking reasonable measures to avoid them

  2. if a claimant takes steps beyond the required reasonable measures and in so doing avoids losses, they cannot recover them

  3. damages may be recovered in respect of the costs associated with taking reasonable steps to mitigate losses

Test to be applied

The burden of proving that a claimant has failed to mitigate their damages is on the defendant.

However, a claimant’s practitioner should try to anticipate mitigation of loss arguments and gather evidence to counter such arguments. A claimant’s reasons for making certain decisions should be explored in depth. Expert evidence may also be required.

The question of whether or not a claimant has mitigated their losses is a question of fact for the judge to decide. The test applied is an objective one. Much will turn on the view the court takes as to what is and is not reasonable. It is a question of fact which is very much dependent on the specific circumstances of the particular case. However, it has been made clear that the requirement should be viewed as being to not act unreasonably rather than to take a conspicuously proactive reasonable approach.

The underlying rationale is that wrongdoers should not be able to

Popular documents