New South Wales Consolidated Acts

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Mitigation of damages

4.15 Mitigation of damages

(cf s 136 MACA)

(1) An injured person is under a duty to mitigate his or her damages.
(2) Accordingly, in assessing damages in respect of a claim, consideration is to be given to the steps taken by the injured person to mitigate those damages and to the reasonable steps that could have been or could be taken by the injured person to mitigate those damages.
(3) Those steps include the following--
(a) undergoing medical treatment,
(b) undertaking rehabilitation (including the formulation and undertaking of an appropriate rehabilitation program),
(c) pursuing alternative employment opportunities,
(d) giving the earliest practicable notice of the claim in order to enable the assessment and implementation of the above matters.
(4) In any proceedings, the onus of proving that an injured person has not mitigated his or her damages as required by this section lies with the person who makes that allegation.
(5) In any proceedings, a written report by a person who provided medical or rehabilitation services to the injured person is admissible as evidence of any such steps taken by that person.
(6) If any dispute arises over an alleged failure by the injured person to mitigate his or her damages, consideration is also to be given to any evidence that the insurer failed to assist in mitigating damages.

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