What should I do to ‘Mitigate Loss’?

If you’re entering into compensation claim proceeding, you will probably be asked about mitigating loss. This is an important legal standard which is particularly relevant to Civil Litigation, Personal Injury, and Medical Negligence claims.

What is mitigated loss?

To mitigate means ‘to make something less harmful, unpleasant, or bad’. Mitigated loss is therefore the concept that if you fall victim to something, you should want to minimise the damage caused to you. If you have demonstrated no effort to minimise your suffering, it may bring to question how much compensation you deserve.

Why is mitigated loss important?

Mitigated loss is important because it takes into account your actions when awarding compensation. A judge will review to what extent you have suffered a loss, and if you have taken reasonable actions to minimise that loss.  You also have to take reasonable steps not to increase that loss.

Are you mitigating your loss? An Example

Often, mitigating your loss is common sense.

For example, you are wanting to claim against your landlord in a civil case because you discovered a leaking window in your rented property, which subsequently led to mould developing on the wall over the course of six months.

Mitigating your loss

If you were mitigating your loss, you would inform the landlord as soon as you found the leak. You would perhaps try to stop the water spreading and keep the area dry. You would chase up the landlord if they did not respond straight away.

Here, you demonstrate that you have tried to prevent the issue from worsening and that it is clearly problematic to you. You have done all that you can before the landlord needs to take action.

Failing to mitigate your loss

If you were not mitigating your loss, on the other hand, you would inform the landlord late, without much urgency, or perhaps not at all. You would allow the damp to develop into mould without trying to stop it. You would only take action once the situation was out of control.

This allows the landlord to argue that they would have prevented the mould from developing had they been informed earlier.

Indeed you, the tenant, did not take reasonable steps to avoid an increase in loss. This would indicate that the situation was not overly problematic for you, which may therefore bring to question how much compensation you deserve. The judge may deem, therefore, that the leak falls into the landlord’s remit, but the preventability of the mould falls into yours (and subsequently you could be liable for it, or at least not be compensated for it).

What you can do

Civil cases can be time consuming and expensive, and not always worth pursuing. In this way, it’s important to consider whether the situation can be avoided altogether. In any case if you can mitigate your loss, no matter to what extent, do!

However if a potentially disastrous, and/or harmful situations happen, it’s a good idea to:

• Keep records of any conversations taken place regarding the incident, especially communication between yourselves and the defendant. This includes emails, text messages, whatsapp messages or social media chat apps.
• Follow any conversation up in writing. This may seem formal, but confirming finer details of an incident in writing can offer stronger evidence at a later date.
• Keep a diary or time line of incidents, meetings and conversations. Knowing the who, what, where and when of situations can not only speed up a claim but give additional information and may make your case stronger. Not only this, but you won’t forget important details.
• Keep records of any relevant documents in a safe place.
• Not sign any documents or agreements relating to the incident, until you seek legal advice.

We understand that these situations can be stressful and gathering documents and keep records are an immediate priority, but these can make a dramatic difference to your case.

We also understand that costs may be an issue when making claims, and we offer fixed fees, free consultations, legal aid and ‘no win no fee’ options on many of our areas of work.

You can email Howells to make an appointment at enquiries@howellsllp.com, visit our website or call us:

Sheffield: 0114 249 66 66

Barnsley: 0122 680 51 90

Rotherham: 0170 936 40 00

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