What is the duty to mitigate?
Put simply, the duty to mitigate is the responsibility of the plaintiff or injured person to minimize related costs. The duty is assessed on the reasonableness of the plaintiff’s actions. If a court finds that a plaintiff did not reasonably try to meet this duty it may refuse to award the plaintiff further compensation.
Suppose a person injures their hand in a motor vehicle accident. This person then meets with a doctor and is prescribed a rehabilitation plan that includes a recommendation for a low-risk surgery with a 75% chance of success. The person refuses surgery but follows through with other parts of the rehabilitation plan.
Later the pain in the hand becomes so intense that the person can no longer fulfill her job requirements as a Chef and resigns. She continues to refuse surgery but sues her insurance company for compensation related to her job loss.
The insurance company is then within its right to allege that the plaintiff failed to meet her duty to mitigate by refusing surgery. If the court agrees with the insurance company the person is then ineligible to receive any additional compensation that resulted from having refused surgery.
This fact scenario is loosely modelled on the actual case of Janiak v. Ippolito which was decided by the Supreme Court of Canada. In that instance the Supreme Court refused compensation relating to an injury-induced job loss which occurred after the injured person refused corrective surgery.
If you have any concerns with the potential effects of not following recommended treatment consult with a personal injury lawyer.