Explaining The Duty To Mitigate Loss During A Compensation Claim


The Law Of... understanding the process for making a compensation claim

For most people that seek compensation after an accident, being unsure of the claims process or the fear of being accused of taking part in a money-making scheme may be enough to stop them making a claim.

The Law Of... understanding the process for making a compensation claim

Nicola Hardy, part of the Personal Injury team at Simpson Millar, explains mitigation of loss, and why it is one of the main points of confusion amongst her clients.

What Does Duty To Mitigate Loss Mean?

When you have been injured in an accident that was not your fault, you take on a duty to mitigate your loss.

In its simplest form, this means you are responsible for minimising the loss caused by an injury.

Mitigating loss is an important part of the claims process, as it ensures that personal injury compensation does not become a profit-seeking measure and makes the Claimant responsible for minimising losses and the effects of their injury.

Mitigation of loss means that Claimants are required to take reasonable steps to seek treatment which may assist in their recovery.

This has a two fold effect on the Compensation Claim, the first is that the Claimant will, in the majority of cases, recover faster and secondly it should minimise the financial effects of the incident.

When figuring out how much loss has been caused by an accident the circumstances of the claim must be considered, as Nicola explains:

"If an individual broke their leg and sought compensation, then any prescribed pain killers would be included in their claim. Providing the Claimant kept their receipt, this would be a straightforward claim."

"Complexities arise when other circumstances are considered, for example if the individual that broke their leg was still in their probation period at work they could fail their probation and lose their job."

"In such a scenario a claim could be made for loss of earnings; this is where the Claimant would be required to mitigate their loss. If the Claimant's leg healed and they did not actively seek alternative employment then they are not mitigating their loss, meaning their claim would only cover the period of time that they could not physically work."

"On the other hand, if the Claimant actively sought employment after they recovered, but could not get a job, then the claim could be extended – this is because they've taken steps to mitigate their loss."

"Similarly, if the Claimant’s employer offers them light duties, a desk based job or some part time hours while they recovered after an injury, providing the role is suitable and will not hinder recovery, the Claimant is under a duty to engage with this as it will ultimately lessen the financial impact of the incident."

How Can I Mitigate Loss While Recovering From An Injury?

The most important thing after an accident is to make sure that you receive the best care and treatment possible. If you approach a solicitor to represent your claim, they may recommend that you see an independent medical expert, who will be able to diagnose the severity of your injury and may advise on the best course of treatment.

It is important to remember though, that the medical expert consulted in regards to your claim is advising as a Medico Legal Expert, it is not their duty to act as a treating consultant; their primary purpose is from a legal standpoint in regards to your claim and establishing a link between the index accident and the injuries sustained.

It is therefore vital that Claimants continue seeking treatment on the NHS to help aid their recovery.

In some cases your solicitor may be able to organise private treatment, however this all depends on the specifics of the case and whether the defendant is willing to pay for private treatment.

Once again, it is important that you do not forego treatment from the NHS. If you've avoided the NHS on the promise of private treatment and a defendant decides not to pay for private healthcare, it could seem like you have not fulfilled your duty to mitigate loss.

What Needs To Be Considered When Mitigating Loss?

When we talk about calculating a compensation claim, the amount an individual will receive is broken down to two sections:

  • General Damages: Covers compensation for pain, loss, and suffering
  • Special Damages: Compensates for the real-world economic loss caused by the accident, this can be money that has already been lost and money that could potentially be lost in the future

When we talk about mitigating loss we do not exclusively mean ensuring loss does not continue through inaction, we also talk about a duty to ensure unnecessary costs do not spiral out of control, as special damages will only cover unavoidable costs.

Nicola explains:

"If you suffer an injury that requires regular medication and prescriptions then the high costs of repeat prescriptions could be claimed under special damages."

"If you were on three different prescriptions, the monthly charge would be £25.20, if you were to buy each individually. You may think that as this charge is unavoidable and the prescription medicine is a requirement for recovery you could claim back the full £25.20 every month."

"However, as the NHS' Prescription Prepayment Certificate (PPC) reduces the cost of prescriptions when more than one medicine is required and Claimants would be expected to opt for this cheaper option. In this example, a 12-month PPC would save over £195 per year."

"This highlights how the duty to mitigate loss places a heavy onus on Claimants and their representatives to keep their Claim proportionate and reasonable. This ensures that the a Personal Injury Claim puts the Claimant back in the same position they would have been in but for the accident, not put them in a better position."

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