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At law, there are a multitude of circumstances where one may suffer loss; from a motor vehicle collision, workplace accident, lost wages, to contractual disputes and commercial matters. When this occurs, there is a right to compensation for that loss.
At common law, a plaintiff/claimant is under a duty to mitigate their loss. This means a plaintiff/claimant must take reasonable steps to reduce the extent of any loss arising from an injury. A ‘wrongdoer’ will not be liable for any loss that should have been mitigated.
Adopting a personal injury example, if a person is unable to return to their usual type of employment as a result of their injury, they have a positive obligation to make reasonable attempts to rehabilitate and re-enter the workforce to the extent of their residual capacity to do so.
This common law duty has been adopted in some legislation, including the Civil Liability Act 2003 (Qld), the Worker’s Compensation e Rehabilitation Act 2003 (Qld) and the Motor Accident Insurance Act 1994 (Qld).
The extent of this duty is not onerous. A plaintiff/claimant is only required to do what is reasonable in the circumstances. A party does not have to go beyond what is reasonable and suffer further losses just to spare the person in the wrong. It is also not onerous on the plaintiff/claimant to demonstrate that they have positively mitigated (or attempted to mitigate) their loss. The onus in on the wrongdoer/defendant to demonstrate that the plaintiff has failed to mitigate their loss.
For example, A is involved in a motor vehicle accident with B, and A is at fault. When B is repairing their vehicle, a Honda, they choose to hire a vehicle as they need to drive to work every day – a Range Rover. This is an example of B failing to mitigate their loss as they have not hired, or taken all reasonable steps to hire a less expensive vehicle.
Let’s change the narrative – as a result of the collision, B is seriously injured and fractures their knee, so they cannot return to their retail job. However, on notifying their employer, their employer temporarily offers them a role in their corporate office, and to work remote while they recover to keep earning income. B declines and does not earn an income for the next 4 months while their leg recovers. This is an example of B failing to mitigate their loss as they have not taken reasonable steps to reduce the loss they have suffered through loss of income.
If you have suffered loss, whether you’ve been injured at work, have damaged property or are involved in a contractual or commercial dispute, reach out to SLF Lawyers to assist you in making a claim or explore your options.
Articolo scritto da Arizona Watson del nostro ufficio di Brisbane.
