Mitigation for Car Accident Victims

In a personal injury case, the plaintiff has to prove that they suffered a loss because of their involvement in the car accident. The main types of losses are damages for pain and suffering, damages for loss of housekeeping capacity, and the cost of future care, as well as financial losses (such as for lost wages due to the inability to work). For damages for pain and suffering, medical records are used to prove to the insurance company of the at-fault driver that the plaintiff was injured and experienced associated symptoms and limitations with their day-to-day activities.

The insurance company of the at-fault driver, the “Section A Insurer,” might argue that the plaintiff’s damages for pain and suffering should be reduced on the basis that the plaintiff failed to mitigate their damages. Mitigation is the principle that the plaintiff should take reasonable steps to minimize the extent of their loss.

In the context of damages for pain and suffering, mitigation means complying with reasonable medical advice and treatment recommendations. For example, if the plaintiff is assessed by their doctor for neck and back pain after a car accident and is diagnosed with whiplash, the doctor will probably recommend physiotherapy. The plaintiff is expected to follow that advice if a reasonable person in the plaintiff’s position would follow it.

In most cases, it would be reasonable to participate in physiotherapy, which is typically recommended for sprains, strains, and whiplash injuries. The case would be different if the recommended treatment was a risky surgery, and the likelihood of success was very low. In that case, a reasonable person may not be expected to undergo surgery. The Section A Insurer would have a hard time proving that the plaintiff failed to mitigate their damages.

Whether a reasonable person would follow the medical advice or treatment recommendations is assessed based on the plaintiff’s personal circumstances. Sometimes, the recommended treatment can be expensive, and the plaintiff may not be able to cover the cost themselves. If funds are not otherwise available to cover the cost (e.g., insurance), the plaintiff’s failure to comply with the recommended treatment may be excused until funds become available.

In the context of financial loss due to the inability to work, mitigation means making reasonable efforts to return to work. If the plaintiff’s physician recommends that the plaintiff return to work, the plaintiff will have to make efforts to participate in a return to work program with their employer or make efforts to find suitable replacement employment if they can’t tolerate their normal work.

While each plaintiff and each case are different, the bottom line is that the plaintiff has a duty to make reasonable efforts to recover from their injuries and get back to the workforce after a car accident. If the Section A insurance company can prove that the plaintiff acted unreasonably and could have minimized their loss if they had taken reasonable steps, the plaintiff’s damages will be reduced.

 Conclusion

Navigating the complex issues of mitigation in a personal injury case can be challenging, and it is crucial to understand both the legal and medical aspects of your recovery. This is where an experienced personal injury law firm can make a significant difference. A knowledgeable law firm can help ensure that the plaintiff takes all necessary and reasonable steps to mitigate their losses while also protecting their rights and ensuring they are not unfairly penalized by the insurance company. From guiding the plaintiff through the medical treatment process to advising on return-to-work strategies, a skilled personal injury lawyer will work diligently to maximize the recovery and minimize any reductions in damages. This legal support is especially important when dealing with the complexities of insurance claims, mitigation defenses, and the ongoing management of the plaintiff’s injuries.

Personal Injury Lawyers – Pressé Mason