Personal Injury… What does “Mitigation of Damages” Mean and How is it Relevant to A Personal Injury Claim?

Tara Miller – January 2017

The purpose of a personal injury claim following an accident is to compensate you for the impact of the injuries on your life and the losses you have suffered, financial and otherwise.  As you recover from your injuries, you should be aware that everyone who has been injured in an accident (motor vehicle or otherwise) has an obligation to mitigate their losses. But what does that mean?

Mitigation of damages in personal injury claims typically arises in two ways – returning to work and participating in recommended medical treatment.  Those injured are required to make reasonable best efforts to get back on their feet.

Returning to Work

If the injuries you have suffered have impacted on your ability to work, you should know that you have a duty to follow doctors’ advice about returning work.  If you are unable to return to your pre-accident employment because of your injuries, then you have a duty to mitigate your income loss by looking for work that you are reasonably able to do.

Cases in Nova Scotia have held that injured people have failed to mitigate their damages with regards to loss of income when they had not made any serious attempts to find work in their field, they were too selective in their search for a job and/or had failed to follow various doctors’ advice about returning to work.

Medical Treatment

Recovery from accident injuries requires more then attending family doctor and/or specialists’ visits.  It also involves you following the reasonable treatment recommendations of those doctors.  As stated by the Nova Scotia Supreme Court “doctors alone cannot ensure a successful recovery within parameters dictated by the severity of the original injuries without the participation of the patient”.

What is reasonable is judged as what a normal prudent person in the same situation would do.  For example, a failure to attend physiotherapy will likely be judged as unreasonable while a failure to have surgery with a low chance of success and many risk factors likely judged reasonable.

In some cases, medical opinions from the insurance company doctors conflict with those of medical opinions obtained from the injured person’s treatment providers.  In such situations where there are conflicting medical opinions as to what treatment should be followed, an injured person will not be penalized for following one recommendation over another.

The Impact of Failing to Mitigate

Insurance companies will argue that an injured person’s failure to mitigate their damages should result in reduced amounts awarded to them.  Nova Scotia courts have accepted this argument where it can be shown that the failure to mitigate was unreasonable and could have minimized damages if such steps to mitigate had been taken.

For more information about mitigation of damages and any questions you may have about the impact it may have on your personal injury claim, please contact one of our Halifax personal injury lawyers for a free consult to discuss in more detail.

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