Under personal injury law, an individual who has been injured through the negligence of another, is permitted to seek compensation from them. This may cover various losses, both economic and non-economic, such as lost wages, medical bills and pain and suffering.
However, the plaintiff also has a ‘duty to mitigate’ damages by taking reasonable steps to minimize the extent of their losses. This legal principle ensures plaintiffs cannot make undue claims for compensation by exaggerating their losses or neglecting to take reasonable action to limit them. In this article, we will take a closer look at the role mitigation plays in personal injury claims and its impact on a potential payout.
What is Mitigation?
Mitigation can be defined as “the duty to make reasonable efforts to limit the harm suffered from another party’s actions.” Failure to do so will likely result in a reduction in the plaintiff’s award for damages since they will be deemed as having contributed to their own loss.
For example, following a car accident, a plaintiff may refuse to use medical equipment such as crutches, a neck brace, or a wheelchair, despite their doctor’s insistence that they do so. As a result, their physical pain worsens. In this case, they will not be eligible to recover damages for the full extent of their pain and suffering as their failure to follow their doctor’s advice contributed to their condition. To learn more about pain and suffering after car accident, visit this site.
While the duty to mitigate only requires the plaintiff to take reasonable steps to minimize their losses, in some cases this may involve incurring additional costs. This could be the cost of physical therapy on their doctor’s recommendation or the cost of purchasing certain medical aids or equipment.
Affirmative Defense
If successfully argued, the duty to mitigate can reduce the amount of damages the defendant must pay the plaintiff. However, the onus lies with the defendant to prove that the plaintiff failed in their duty to mitigate.
This is known as an ‘affirmative defense’, as it applies in cases where the defendant has accepted liability for the plaintiff’s injuries, but challenges the amount of compensation they are entitled to, due to their failure to take reasonable steps to limit their losses.
Comparative Negligence
In many states, a court will apply the comparative negligence rule to determine the amount of damages the plaintiff ought to receive in cases where they failed to mitigate their damages. The comparative negligence doctrine reduces damages awarded to plaintiffs in accordance with their level of fault.
For example, a plaintiff who is found to be 30% responsible for their injuries due to their failure to mitigate, will only be awarded 70% of the total award for damages. Under the pure application of this doctrine, a plaintiff can still recover 1% of their damages even if they are 99% responsible for their injuries. However, other states place a threshold on recovery, allowing plaintiffs to only recover damages if their degree of fault is less than 50% or 51%.
Plaintiffs in personal injury cases should take reasonable steps to mitigate their damages to ensure they receive fair compensation for their losses.
