What are the things you must do to prove your loss – and to minimise your loss – in a Personal Injury Compensation Claim?
How easy is it to value a personal injury compensation claim?
In theory, working out the value of your personal injury claim should be straightforward.
What your solicitor needs to do is make a comparison between two possible factual scenarios:
- What your life was like before the accident, with a projection forward of how your life would probably have been if your accident had not happened (or, as lawyers put it, how your life would have been ‘but for’ the accident); and
- How your life actually is as a consequence of the accident.
Both of these key elements are estimates or projections, to some extent. Both will carry uncertainties, to a greater or lesser extent.
There are two important things to bear in mind when comparing “your life as it is in fact” (with the accident) with “your life as is should have been” (without the accident).
- Firstly, you must always address the question whether the accident caused the loss claimed at all.
- Secondly, if it did, you must assess whether the amount claimed is reasonable in all of the circumstances.
Let’s look at each of these in turn.
1. Did the accident cause the loss you are trying to claim.
In some instances, this will be “obvious”.
For example, if your accident did not cause any injury to your wrist, a claim for physiotherapy costs incurred in relation to the wrist will fail because these are not expenses incurred as a result of the accident.
But sometimes it is more complex.
For example, the accident may have caused the need for you to receive four hours per week of necessary services for a period of a month after your accident, but not six hours per week for the same period.
The concept of “Mitigation of Loss”.
The parties must always bear in mind the requirement for the injured person to act reasonably in mitigation of loss when considering this question of what the accident has caused.
“Mitigation” is the action of reducing the severity, painfulness or seriousness of something.
Elsewhere in the law – in criminal defence work – where a client has pled (or been found) guilty in respect of a charge, solicitors must address the court “in mitigation”. In other words, to say to the court: “Yes, my client has been convicted of the offence but here are the reasons why the court should reduce the severity of the sentence imposed to somewhere below the maximum.”
With personal injury claims, depending on the exact circumstances, the duty on the injured person to act reasonably might mean they should self-help to prevent the consequences of the accident and their injury getting worse.
Strictly-speaking, there is no ‘duty of mitigation’ on you, as the claimant. But the expression “failed to mitigate their loss” is often used as convenient shorthand for a loss which is not a recoverable consequence of the injury because the injured person has not acted reasonably in response to their injury.
Any loss which could reasonably have been mitigated but was not mitigated is not considered to be a loss caused by the accident.
The burden is on the opponent to prove that the injured claimant has ‘failed to mitigate their loss’. In other words, the onus is not on the claimant to prove that they did mitigate all their losses to the maximum extent possible.
The opponent should give fair notice to the claimant in their defence to the claim, if they intend to argue that there has been a failure to mitigate loss.
Now, let’s turn to look at the situation where the opponent’s actions (or failings) did cause you, the injured person, a particular loss but there is an argument about whether the amount claimed is too much.
2. Whether the cost claimed for an otherwise recoverable loss is reasonable in all the circumstances.
Here, it is worth emphasising that we are not weighing things up too finely.
For example, you would not expect insurers (or a court) to get hung up on the cost of a single session of physiotherapy.
Where there is doubt as to whether an injured person will need some future treatment, such as a hip replacement, then the reasonable cost of that claim for treatment is the cost discounted to reflect the risk that the claimant may not in fact need to undergo that treatment. So, in some situations you may recover 70% of the likely cost of possible future surgery (or some other percentage) to reflect whether it is very doubtful that you will need the treatment in fact (i.e. a low percentage will apply) or almost certain (i.e. a higher percentage – maybe even 100 per cent – will apply).
Similar considerations may arise if it is unclear whether the injured person will choose to undergo some recommended treatment option. A wide range of issues could affect the decision (and the objective reasonableness of the decision) either way, including, but not limited to:
- the likelihood that the treatment will be a success (and what “success” looks like);
- the risk of any complications (especially significant or life-threatening complications);
- the length of time it will take to rehabilitate from the treatment.
It’s not necessarily the case that, if choosing one course is reasonable, choosing the opposite is automatically unreasonable.
So, if you’re considering whether or not to have an operation which has a 40% chance of improving your pain levels and mobility but carries a 5% risk of paralysis and, even in the best case, will require about one year off work in rehabilitation post-op, you will probably be behaving reasonably whether you decide to have the operation or not.
Summary
As the injured person making a claim for personal injury compensation, you have to act reasonably.
While you don’t have to go mad in taking every possible step to minimise your losses arising from an accident, it’s something to keep in the back of your mind at all times if you have to make decisions – and you will – about treatment options and incurring (or not incurring!) particular costs which might help your recovery.
You do not want to give the insurers the incentive to run a “mitigation of loss” argument against you because it will introduce an avoidable and unwelcome complicating factor into your claim.
How we can help
If you have any questions about anything contained in this article – which looks generally at what you can claim and what you cannot claim as part of a personal injury claim – please do not hesitate to contact us.
We want the information on this website to be as comprehensive as possible. Your questions can help us review what’s on the site, for everyone’s benefit. You can contact us by phoning 01343 544077 or you can send us a Free Online Enquiry.
If you want to enquire about our personal injury claim services, remember that you can get a free case assessment from us.
Where a Free Case Assessment is something which would be helpful to you – and we would be local, specialist solicitors from your point of view – please make a Free Online Enquiry via this website or phone us.
Read this article if you want to understand what will actually happen if you enquire with us about making a personal injury compensation claim.
Once again: you can call us on 01343 544077 or send us a Free Online Enquiry.
