Mitigation of damages

In plain English: mitigation of damages means you're expected to act reasonably to keep your losses from growing after an accident. If you don't, the part of your loss you could have avoided may not be paid.

What "reasonable" means

You don't have to do everything possible, and you don't have to take big risks or spend money you don't have. The test is roughly what a sensible person in your position would have done. Courts in the US, UK and Canada all apply this idea, and in most places it's the other side's job to prove you failed to mitigate, not your job to prove you did.

Where mitigation arguments come up

• Medical treatment. Skipping appointments, not doing your physio exercises, or waiting months before seeing a doctor. Insurers argue you'd have recovered faster if you'd followed advice.
• Going back to work. If your doctor clears you for light duties and your employer offers them, turning them down can reduce your lost-income claim.
• Looking for other work. If you can't return to your old job but could do something else, you may be expected to look for suitable work.
• Car hire and repairs. Leaving a car at a garage for months, or hiring a luxury vehicle when a standard one would do, can lead to cuts in property damage and hire claims.
• Letting damage spread. Not covering a smashed window before rain gets in, for example.

Where the duty stops

You aren't generally expected to have surgery with real risks just because it might help, though turning down a routine, low-risk treatment that doctors strongly recommend can count against you. Courts usually look at why you refused. Fear based on a bad past experience, conflicting medical advice, or not being able to afford treatment are all reasons a court may accept. Nor are you expected to take a job far below your skills, or to move house, simply to reduce what the other side pays.

How to protect yourself

1. Follow medical advice, and if you can't, write down why and tell your doctor.
2. Keep records of every appointment you attend, and any you had to cancel.
3. Talk to your employer about returning on lighter duties when you're medically fit.
4. Get repairs or a replacement car moving promptly, and keep the insurer updated on delays outside your control.
5. If money is stopping you from getting treatment, raise it early. Some insurers will fund rehabilitation.

Next: rehabilitation · lost income · claims process hub.

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