10 June 2024

Abby Wallace, a paralegal in the Clinical Negligence Department considers the duty to mitigate losses in a clinical negligence claim.

If successful in a clinical negligence claim, the claimant will either agree an amount of compensation to 'settle' the claim with the defendant or, if liability is disputed by the defendant or an amount of compensation cannot be agreed, it may need the court to award an amount of compensation it deems to be appropriate, most cases will however settle without the need for a judge to decide what compensation is to be paid.  The legal term for compensation is damages.  The purpose of damages is to provide financial recompense to put the claimant into the position they would be in had the breach of duty (negligence) not occurred in the first place.

There are two types of damages, namely general and special damages. General damages are an amount of compensation awarded for pain and suffering and loss of amenity (effect on quality of life). Special damages are an amount of compensation awarded for any financial losses (out of pocket expenses) resulting from the negligence (such as loss of earnings, care, travel or medication costs).

All claimants have a legal duty to mitigate their losses, which requires them to take reasonable steps to minimise such losses rather than increase their losses, just because the defendant is at fault, for example a claimant cannot say that they will never work again because of negligence if they would be suitable for another role, even if that is not within their field or a job that would be paid at a lower wage.

The question that arises is therefore what is reasonable? There is no definition of what reasonable is and determining what may be considered reasonable will be dependant on the circumstances, so each case will be considered on its own facts.

Claimants may need further medical treatment to correct or limit the effect of the negligence, they may not be able to recover damages if they purposely chose expensive medical treatment when there was a cheaper suitable alternative available. A claimant may also not be able to recover full damages if they are found to have reasonably chosen not to have any further recommended treatment that delays their recovery, and then attempt to claim for pain and suffering beyond what it would have been with successful treatment.

What does this mean for claimants?

Should a claimant not comply with the duty to mitigate and the case progresses to court, the court could prevent the claimant from recovering losses claimed which were deemed to have been unreasonably incurred, which would leave a claimant recovering less damages than perhaps they were expecting. 

Although clinical negligence claims usually settle before court proceedings are required, claimants are obliged to always comply with this duty.