The preliminary ruling under Article 267 TFEU to the Austrian Supreme Court provided clarification of what constitutes an accident triggering liability on the part of the air carrier under Article 17(1) of the Montreal Convention. The Convention sets out common rules relating to the international carriage of passengers, luggage and cargo by aircraft. Read more “Personal Injury on Aircraft – definition of accident”
Obligation on accident victim
Where an individual decides to take a personal injuries action they are under a legal duty to minimise the amount of losses incurred. This duty is known as mitigation of loss.
The obligation on Plaintiffs (victim) to avoid unnecessary losses is set out in law in the Civil Liability and Courts Act, 1961. The reasoning behind this is that it would be unfair for the Defendant to be held liable for costs which could have been reasonably avoided. The duty to mitigate relates to both general damages for pain and suffering and special damages for actual financial losses incurred.
Examples of Mitigation of Loss
- Returning to work as soon as practicable to reduce loss of earnings
- Attending relevant medical appointments
- Doing rehabilitative exercises to expedite recovery (if recommended)
- Avoiding unnecessary expenditure where possible
Failure to Mitigate
The onus of proof is on the Defendant to show that the Plaintiff acted unreasonably in the incurring of additional losses. Where a Plaintiff is found to have negligently or carelessly failed to mitigate their losses, this will be deemed contributory negligence and they will be held responsible for an appropriate portion of losses incurred. The judge will review the additional losses caused by the failure to mitigate and will reduce damages accordingly.
Plaintiff on illness benefit
It is incorrect to assume that payment of illness benefit by Social Welfare means that the Plaintiff (victim) remains genuinely unfit to work of any kind. In personal injury case it will be separately verified (separate to how Social Welfare is or may verify if a person is really sick and unfit to work) whether Plaintiff is fit to resume employment. You should also get proper legal advice how you shall be making attempt to return to other type of employment, maybe to obtain new qualification or skill and how you may get financial support for that.