As the victim or the plaintiff in a personal injury case, it is in your interest to seek the maximum possible compensation for the losses that you have suffered as a result of the  negligence of another. The defense on its part would stringently oppose or seek to reduce such claims.  Final settlement seeks to balance the two views. However, apart from this, there is a lesser known element of tort law that all plaintiffs must inform themselves about. This is the plaintiff’s duty to mitigate. Our experienced personal injury lawyers can advise their clients about these and other aspects of their case.

What is the Duty to Mitigate?

The defendant in a personal injury cases or the persons/agencies alleged to be at fault have a duty to observe the rules, act reasonably and follow safety norms. However, the plaintiff also has a duty to avoid incurring further damages by acting in a reasonable manner. For instance, in a slip and fall accident, if the plaintiff refuses medical treatment, but later sues for damages because he/she has lost the function of a limb, then this is deemed by the court to be a failure to mitigate. Plaintiffs thus have an “obligation to reduce damages,” but no obligation to choose cheaper treatment.  The treatment chosen should be the most effective and reasonably priced one available. They should act promptly, in good faith and take reasonable steps to reduce their losses.

What is reasonable and cost-effective can be debated on merits during negotiations or trial.

The defendant must prove the plaintiffs failure to mitigate in that:

• There were steps the plaintiff could have taken to reduce the loss
• The plaintiff failed to take them
• It was reasonable for the plaintiff to have taken such steps promptly
• The extent to which losses would have been reduced if such action had been taken
• They engaged in risky behavior which increased loss

Duties of the Plaintiff

Our free consultation injury lawyers can advise victims or their relatives to take immediate and appropriate steps to reduce their pain and suffering, seek medical attention, exercise due diligence and ordinary care to ensure that they select proper hospitals, doctors and treatment. Once they recover, they should take all necessary steps to continue working. If they have been dismissed from their jobs due to long absence/hospitalization, they should seek alternate employment. If they are unable, due to disability, to continue doing the work they previously did, they need to take reasonable steps to secure other employment to reduce their financial burden. Our serious injury lawyers can ensure that the plaintiff’s duty to mitigate obligations are reasonably fulfilled and recorded.

Refusing/Disregarding Treatment

A controversial area in tort law that our accident injury lawyers, available 24×7 can advise about, is the plaintiff’s or their relatives’ attitude towards medical treatment. When multiple surgeries are required, the victim may refuse further treatment. They may choose alternative or non-conventional treatments. This could result in further deterioration of the person’s condition. Under such circumstances, the plaintiff cannot claim compensation for the more serious consequences.

Some plaintiffs have an over-riding fear of surgery and may want reassurance that the operation would be 100% successful, which is obviously impossible to give. The judge may decide to investigate whether this fear existed prior to the accident or not.

The injured have a duty to accept treatment that is recommended by a qualified medical practitioner, in good faith, and one that has a good record of success.

In the case of non-routine surgery and treatment, the plaintiff is not obliged to undergo such procedures especially if it is hazardous or has known risks but the question arises about whether such treatment would have brought the person back to normal.

The Thin Skull Argument

Our 24×7 injury lawyers have the experience and knowledge to ensure that all victims of accident/injury receive the best and most appropriate medical treatment. It is a well-established proposition in tort law that the defendant must take the plaintiff as they find them – which means, whatever the previous history or condition, the damages suffered should be compensated for. This is the famous “thin skull argument” that states that even if the plaintiff had a skull as thin as an eggshell, if they are injured they would suffer extremely grave consequences as compared to others, and the defendant is responsible for this greater harm.

The duty to mitigate and other complexities can be best explained by  a personal injury lawyer from our firm.

If you, your family or a friend has been injured in an accident, please feel free to speak to one of our injury lawyers for a free consultation about how we are able to assist in making a personal injury claim. We consult in all cities across Ontario with a no win no fee guarantee. Our personal injury lawyers have helped victims secure millions of dollars in personal injury cases. Call us Toll Free On our 24/7 Injury Hotline: 1 – 844 495 7333 or Text a Personal Injury ‎Lawyer 24/7 and get instant help.TM (416 931 5015)