Duty to Mitigate

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Defense counsel in personal injury claims may assert that plaintiffs have a duty to mitigate damages. What is the duty to mitigate? In short, the duty to mitigate refers to the injured person’s post-accident obligation to reasonably recover damages on their own. The duty to mitigate limits the injured person to recover the portion of damages they had no opportunity to reasonably avoid.

In the words of Justice Wilson in a Supreme Court decision in Janiak v Ippolito, “While a plaintiff has the burden of proving both the fact that he has suffered damage and the quantum of that damage, the burden of proof moves to the defendant if he alleges that the plaintiff could have and should have mitigated his loss.”

It is important to point out, however, that the plaintiff’s duty to mitigate does not entail a duty to adopt the cheapest means in their mitigation efforts. As Pearson L.J. points out in Darbishire v. Warrant, “The plaintiff is not under any contractual obligation to adopt the cheaper method: if he wishes to adopt the more expensive method, he is at liberty to do so and by doing so he commits no wrong against the defendant or anyone else...In short, he is fully entitled to be as extravagant as he pleases but not at the expense of the defendant.”

The Statutory Accident Benefits Schedule (SABS) also prescribes a positive duty on the part of claimants to mitigate damages. Under section 57 of SABS, the claimant has the duty to seek treatment and rehabilitation as reasonable, available and necessary”. Under section 58, the claimant who is receiving income replacement benefits (IRBs) has a duty to make reasonable efforts to return to work. The insurer may stop payment of various benefits if the claimant fails to do so.

If you do not mitigate your damages, meaning you do not do anything to get better medically, you do not follow the instructions of your doctor, and/or you do not attempt to find employment if you are capable of working in any capacity, then the defense has a right to reduce your compensation.

If you have any questions regarding a personal injury matter and need assistance, please contact JEWELL RADIMISIS JORGE LLPfor a free consultation.