If you are involved in an accident because of the fault of another party, and sustain an injury as a direct result of that accident, you may choose to pursue a claim for personal injury against the party at fault.
A lot of claimants who pursue personal injury claims do not realise that they have a legal duty to mitigate their loss.
Compensation
Claimants are entitled to both general damages and special damages in a personal injury claim. General damages account for compensation for the pain, suffering and loss of amenity following an accident, whereas special damages account for compensation for financial loss. Financial loss can include:-
- Travel expenses to and from medical appointments;
- Medical treatment;
- Damaged clothing;
- Loss of earnings;
- Paying for help with care and assistance i.e. cooking and cleaning;
- Cost of childcare;
- Home adaptations; and/or
- Equipment such as a wheelchair or a walking aid.
The compensation a claimant recovers is intended to put them in a position they would have been but for the accident; it is not intended to put them in a better position. Claimants should ensure that they make the effort to minimise their financial loss.
What does “Duty to Mitigate Loss’ mean?
As above, the duty to mitigate requires the claimant to take steps to minimise their loss and to avoid taking unreasonable steps. A claimant cannot recover damages for any loss which could have been avoided by taking reasonable steps. Whilst the duty is not enforceable, it is recognised that if a claimant fails to mitigate their loss, their recovery of damages will be affected.
Medical Attention following an Accident
A claimant is expected to take reasonable steps to seek medical attention as soon as possible following an accident, to of course help treat their injury, but also to avoid hindering any recovery.
Claimants will normally be seen by at least one Medical Expert throughout a personal injury claim. However, this will be in a medico-legal capacity with a view to establishing causation between the accident itself, and the injuries sustained as a result of that accident. It is important that claimants seek medical attention via the NHS as soon as possible in order to undergo actual treatment for their injuries.
Recommended Treatment
As above, claimants will be examined by a Medical Expert if liability is accepted or prospects of success remain above 50%. This will help not only to value general damages, but will often bring about a recommendation for further medical treatment, such as physiotherapy, occupational therapy or even surgery. This can, in certain circumstances, be arranged privately by the claimant’s solicitor. However, claimants are always advised to seek the treatment first via the NHS, as soon as possible. By receiving the recommended treatment via the NHS if possible, instead of on a private basis, a claimant will be mitigating their costs.
Undertaking recommended treatment accelerates a claimant’s recovery and can also help to mitigate other areas of loss, by putting them in a better position to return to work or to continue care for their children/dependants at their earliest opportunity.
If the claimant delays seeking or commencing the recommended treatment until some time after i.e. several months later, then they will have failed to mitigate their loss and will not be able to recover for an additional period of pain and suffering that otherwise would have been avoided. This failure will be taken into consideration by the defendant’s representatives or a Judge when awarding compensation.
Travel Expenses
Sometimes a claimant is not able to walk or drive for a period of time following an accident and they are left to rely on other means of transport. An example of mitigating loss here would be electing public transport over taxis, where possible, as it is usually cheaper.
Loss of Earnings
Following an accident, it is possible that an injured claimant may be unable to work for some time. A claimant should always return to work as soon as they are fit and able to do so. Claimants choosing to delay their return, despite being able, will not be mitigating their loss and their damages may be reduced.
We can help
If you are involved in an accident that wasn’t your fault, please contact the Personal Injury team at Ringrose Law. Call 0333 3580 393 or email