All Claimants should be aware that they are under a duty to mitigate their losses - that they must take all reasonable steps to assist in their recovery and minimise their monetary losses. Insurers often complain that the Claimant takes no responsibility for their own well being, focusing on blame rather than recovery.
The principle of mitigation was addressed in the recent case of Edmonds -v- Lloyds TSB Group PLC (2004) EWCA Civ 1526. The Claimant had refused to undergo a series of hydrocortisone injections in her back which were recommended by the orthopaedic surgeon instructed by her solicitors. She was anxious about such injections. The expert advised there was a 50% chance of treatment providing significant improvement in her condition and that within 6 months her symptoms could 'settle and she would be able to return to her previous job and previous activities'.
In the first instance the Judge found that the Claimant had failed to act reasonably given the 50% chance of significant recovery and hence had failed to mitigate her loss. Following the principles laid down in Morgan -v- Wallis (1974) she could recover only those damages she would have been able to recover had she undergone treatment.
On Appeal by the Claimant the Court of Appeal overruled this decision. They felt that the trial judge had given insufficient weight to the fact that the Claimant had consulted her GP who had not been optimistic about the chances of success. Further, a 50% chance of significant recovery equally meant a 50% chance of only temporary or no recovery, which could not be held to be a high chance of success. The orthopaedic surgeon had not criticised the Claimant for refusing treatment and these factors, coupled with the Claimants fear of treatment, illustrated that refusal was not unreasonable.
Defendants must in the future be aware that to argue failure to mitigate they must provide evidence that the reasons for refusal of treatment were unreasonable, not simply that treatment may have assisted in the Claimant's recovery. |
