Expert Witness Journal Issue 63 October 2025 - Flipbook - Page 42
Mitigation In Personal
Injury Claims
by Laura Wilson & John Caddies
In personal injury claims, claimants have a duty
to take reasonable steps to minimise their losses
stemming from an accident/illness. This is
known as “mitigation”. Examples of mitigation
steps that a claimant is expected to take include:
seeking timely medical treatment and following
treatment recommendations; exploring alternative
employment or retraining options available to
them if they are unable to return to their preaccident employment; and avoiding incurring
disproportionate or unreasonable expenses.
a judge in this scenario that the claimant had failed
to mitigate his losses, the defendant would have
most likely have had to o昀昀er to pay for the claimant
to undergo a weight loss programme or instruct a
personal trainer, or some other form of weight loss
assistance, in the 昀椀rst instance. If the claimant had
then refused the defendant’s o昀昀er, the defendant’s
chances of obtaining a 昀椀nding from a judge that
the claimant had failed to mitigate his losses would
have likely increased. This is because a judge may in
that scenario have reached the conclusion that the
claimant had unreasonably refused assistance from
the defendant to lose weight.
If a defendant can successfully persuade a court
that a claimant has failed to take reasonable steps to
mitigate their losses, that claimant can be penalised
by way of reduction to their recoverable damages for
the part of the loss that could have been avoided. The
key issue for determination is the “reasonableness”
of the claimant’s conduct.
NHS v private medical treatment
Another common mitigation issue touches upon the
debate between NHS v private treatment in personal
injury litigation. Claimants have a duty to seek
prompt medical treatment for their injuries to avoid
being accused of failing to mitigate their losses, and
if prompt medical treatment is unavailable on the
NHS, they often turn to private medical treatment
and thereafter seek to recover those private medical
expenses from the defendant.
Seeking timely medical treatment and
following treatment recommendations
An interesting recent defence case that I was
instructed on involved a claimant who sustained a
signi昀椀cant shoulder injury in a workplace accident.
The expert evidence was that the shoulder injury
would resolve to a nuisance level within a set
timeframe if the claimant underwent shoulder
replacement surgery. The claimant, however,
was obese and therefore was not eligible for the
shoulder surgery unless he lost a signi昀椀cant amount
of weight, which he had not done. The issue which,
therefore, arose was whether the claimant was being
unreasonable in not losing weight, as arguably if
the claimant underwent the surgery, his shoulder
symptoms would vastly improve, which would
signi昀椀cantly improve his quality of life and reduce
his future losses.
Each case will be determined on a case-by-case basis,
but the general rule is that a claimant has the right
to choose to have their treatment on a private basis,
especially if it will mean a more expedient resolution
of their symptoms, despite the availability of NHS
services. The question inevitably comes down to
“reasonableness” and whether it is reasonable for
the claimant to have incurred medical expenses on
a private basis. Generally, the courts’ view is that if
a medical expense is reasonable and recommended
by an expert, the injured person is not restricted to
NHS treatment, and the claimant’s duty to mitigate
their loss does not mean that they have to seek NHS
treatment to reduce the amount of private treatment
expenses they incur.
The claim settled on a commercial basis without
further consideration of this issue by a judge.
However, if the claim had proceeded to a trial, it
is questionable whether the defendant’s mitigation
argument would have succeeded in this instance as
a judge may well have been sympathetic to potential
arguments from the claimant that it would have been
very di昀케cult for him to lose weight and/or he had
tried but had been unsuccessful. In order to persuade
EXPERT WITNESS JOURNAL
Exploring alternative employment or
retraining options
In addition, and as referenced above, claimants
have a duty to explore alternative employment or
retraining options if they cannot return to their
pre-accident employment. If a claimant fails to
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