New South Wales Consolidated Acts

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Mitigation of damages

151L Mitigation of damages

(1) In assessing damages, the court must consider the steps that have been taken, and that could reasonably have been or be taken by the injured worker to mitigate those damages.
(2) In particular, the court must consider the following matters--
(a) whether the injured worker has undergone appropriate medical treatment,
(b) whether the injured worker has promptly sought suitable employment from the employer or, if necessary, suitable alternative employment,
(c) whether the injured worker has duly complied with the worker's obligations under Chapter 3 of the 1998 Act (Workplace injury management),
(d) whether the injured worker has sought appropriate rehabilitation training.
(3) In any proceedings for damages, the person claiming damages has the onus of proving that all reasonable steps to mitigate damages have been taken by the injured worker. However, the person claiming damages does not have the onus of establishing that the steps referred to in paragraphs (b)-(d) of subsection (2) have been taken, and the court assessing damages does not have to take the matters referred to in those paragraphs into account, unless it is established that before those steps could reasonably be expected to have been taken the worker was made aware by the employer or insurer that the worker was required to take those steps.
(4) In any proceedings for damages, a written report by a person who provided medical or rehabilitation services to the injured worker is admissible as evidence of any such steps taken by that worker.

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