To “mitigate” means to decrease the severity, seriousness, or painfulness of something. In a personal injury case, the injured party has a duty to mitigate his or her damages. This means that you have a legal obligation to take reasonable steps to reduce the consequences of the harm inflicted upon you. To put it simply: You may not recover compensation for harm that you reasonably could have avoided. This duty applies even if you were not responsible, in any way, for the incident that caused your injuries.
Duty to Mitigate Physical Harm
The duty to mitigate damages requires that you take reasonable steps to limit the physical consequences of your injuries. For example, the defendant may argue that you have failed to mitigate your damages if you:
- Decline to undergo a relatively routine surgery that carries little risk, but promises to greatly improve your outcome;
- Delay seeking treatment for an obvious injury; or
- Fail to follow your doctor’s treatment plan.
This does not mean that you have no choice with regard to your treatment options. You may, for example, decline surgery and choose to live with your injuries and adapt. If, however, a reasonable person in the same situation would have elected surgery, then your damages may be reduced by an appropriate amount, to reflect the harm you could have avoided.
Duty to Mitigate Economic Losses
If your injuries prevent you from doing the work you did previously, but you are still able to work, the duty to mitigate requires you to take reasonable steps to minimize your economic losses, including seeking suitable employment or retraining opportunities. The law does not allow a person, once injured, to sit back and wait for a windfall in the form of a settlement or jury award.
Ultimately, mitigation of damages is a question of reasonableness: What would a reasonable person do under similar circumstances? You are required to do no more than that. If, however, you fail to act as a reasonable person would, with diligence and in good faith, then your damages (the compensation for your injuries) will be reduced accordingly.