What Is Mitigation of Loss in Damages?

Mitigation of loss means that, after suffering harm caused by a tort, a claimant must take reasonable steps to keep their losses from increasing. If they unreasonably fail to do so, they cannot recover damages for the loss they could have avoided. Damages are the money awarded to compensate the claimant for their loss.

How does it work?

The claimant does not have to eliminate every loss or choose the cheapest possible course of action. The question is whether their response was reasonable in the circumstances. For example, it may be reasonable for an injured claimant to seek medical advice and follow suitable treatment, but they are not expected to take an unreasonable medical risk.

The defendant must show that the claimant failed to take reasonable steps and that this failure caused an identifiable part of the loss. Damages can then be reduced by that avoidable amount. The claimant can still recover compensation for the harm caused by the tort and for losses they could not reasonably have prevented. Reasonable costs incurred in trying to limit a loss may also be recoverable, even if the attempt does not succeed.

Example

Suppose a claimant is injured in an accident and cannot work for six weeks. If suitable, accessible treatment would reasonably have enabled them to return after four weeks, but they unreasonably declined it, the final two weeks of lost earnings may be treated as avoidable. They may still claim for the first four weeks. The outcome depends on the evidence about the treatment and the claimant’s circumstances.

Exam mistake to avoid: mitigation concerns what the claimant reasonably does after the harm to limit further loss. Do not confuse it with contributory negligence, which concerns whether the claimant’s own conduct helped cause the harm in the first place.