Failure to mitigate loss is important for an injured person who makes a claim for damages/compensation. The injured person must take steps, where reasonable, to reduce their losses.
From time to time an insurance company will assert that the injured person’s compensation should be less because he or she has failed to mitigate their loss, for example by refusing to undergo surgery recommended by their treating specialists, failing to undergo psychiatric treatment and to take anti-depressant medication if advised to do so by their treating psychiatrist or psychologist.
The onus of proving that an injured claimant has failed to mitigate the loss is on the insurance company.
Each compensation case depends on its own facts.
If an insurance company can show that some reasonably straightforward medical treatment, medication, psychological counselling would be effective in reducing the injured person’s suffering an allegation of failure to mitigate loss may be made out. However, it is unlikely to be made out if the insurer itself has refused to fund such treatment, counselling and medication, or if a long period of time has elapsed between the injury and the suggestion that some medical treatment, counselling or medication could have beneficial effects. More often than not, by then the injured person’s situation has become chronic and entrenched and is unlikely to be reduced or eased by the late intervention of medical treatment and the like.
Whether an injured person’s refusal to undergo surgery was reasonable depends on the injured person’s knowledge of the benefits and risks of surgery at the time of the refusal. At the very least the insurer will need to adduce evidence that the injured person’s doctors have explained to the injured person the benefits and risks of the surgery, if it is to discharge its onus of proof.
Furthermore, the risks of ingesting pain-killing and any anti-depressant medication are well‑known. So are the side-effects such as reflux, bloating and other gastric problems.
When advising an injured person about his or her legal rights it is generally prudent to emphasise the need for the injured person to do all he or she can to mitigate loss, either by returning to work if the person is physically and psychologically able to do so, or to receive recommended medical treatment, therapy, counselling, if the injured person is satisfied that any such treatment is likely to be beneficial.
The worst advice a lawyer can give to an injured client is to refuse to return to work or to undertake medical treatment with a view to maximising the quantum of the claim. Not only is at unethical it will also produce the risks that the insurer will successfully argue that the injured person’s compensation or to be reduced because of the person’s failure to take reasonable steps to mitigate the loss.
HOW CAN STACKS GOUDKAMP HELP?
By choosing Stacks Goudkamp to represent you for your personal injury claim, you will be in the best of hands. You can be confident that your personal injury lawyer will have the knowledge and the experience and the personality and character to do his or her very best for you to ensure that your claim is successful and that the compensation process is as stress free for you as possible.
We will act for you on a no win, no fee basis. We will gather evidence from various medical experts, the police and other experts. We will also examine how your injuries have impacted your ability to participate in the activities you enjoyed prior to the accident and your ability to continue working. When finalising motor vehicle cases we conduct thorough negotiations with at-fault parties and insurers in order to obtain the maximum amount of compensation you are entitled to. In many cases, we are able to do this successfully without the need of going to court.
If you or someone you know has been injured you should contact Stacks Goudkamp, on (02) 9237 2222 or enquire online.
Written by Karina Goodall
Karina Goodall is a Practice Group Leader at Stacks Goudkamp specialising in motor vehicle claims, superannuation and TPD claims.
