LAST WEEK THIS column provided some preliminary indications about special and general damages in motor vehicle claims. This week, I wish to focus on an extremely important duty placed on the injured. That is the duty to mitigate the damages, that is to say, the person seeking to make a claim must do whatever is reasonable to minimise the loss as far as he or she can.
In my view, the word mitigate does not carry any special meaning as the meaning given by most dictionaries is to "make less severe, to alleviate or to lessen the seriousness."
The effect of mitigation is that the injured party cannot recover damages for any prolongation of injuries due to his wilful act or by his failure to take reasonable steps to reduce the loss. One of the consequences of failure to mitigate is that damages claimed would be based on the losses that would have been sustained had the injured party acted reasonable and mitigated his losses.
COMMON PROBLEMS
Some of the common problems associated with the duty to mitigate are for instance the failure of the injured person to return to work promptly and refusal to undergo medical operation. It is not unusual for issues as to whether the injured person can return to work or ought to have returned to work to be hotly disputed in any court proceedings or settlement talks. The injured party has a duty to return to work at the earliest convent date. It is important to note that although the burden is placed on the injured person to mitigate, the burden of establishing a failure to mitigate loss is on the defendant. The defendant must provide evidence to show that the delay in returning to work was an unreasonable act by the injured person.
As part of the injured person's duty to mitigate, he may be required to undergo medical treatment, which could alleviate the medical challenges he faces. The real question is. Can the injured party refuse to undergo medical treatment and if so, what are the consequences? In a case before the Privy Council in 2002: Geest Plc v. Lansiquot, the matter was considered by the court when the claimant declined to undergo surgery, which could have alleviated a back problem. The burden of proof was placed on the defendant to show that the refusal of surgery was unreasonable. However, it must be noted that in 1983, the Privy Council reviewed this point in a Jamaican case: Selvanayagam and University of the West Indies, where it was held that the burden of proof was on the plaintiff (injured person) to prove that the refusal to undergo surgery was unreasonable. This principle was not followed in the later case from the Privy Council and therefore it would seem that the burden in law is on the defendant to prove that the plaintiff's refusal to undergo surgery was unreasonable.
In all of this, what must be remembered is that the general principle of mitigation is for the injured person to do all that is reasonable to reduce the claim against the defendant. This is what is expected of the person seeking damages from the defendant. Nothing less.
Keith N. Bishop is an attorney-at-law and partner in the firm of Bishop & Fullerton. He may be contacted by email at: knb@bishopfullerton.com
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