Personal Injury

Personal injury claimants have a duty to mitigate: Lee

By AdvocateDaily.com Staff

In the final instalment of a two-part series, Toronto personal injury lawyer Andrew M. Lee offers tips to PI claimants on how to get organized as early as possible following an accident.

An injured accident victim who is making a claim against an insurance company must do everything in their power to get better in order for the claim to be successful, says Toronto personal injury lawyer Andrew M. Lee.

Lee, the founder and principal of Lee and Associates Personal Injury Lawyers, says what that person does after sustaining an injury is crucial to their chances of a successful outcome for a personal injury claim.

The claimant has the legal duty to mitigate, which means they must demonstrate that they are doing everything they can to recover, Lee tells AdvocateDaily.com.

“The defendant, negligent party, or at-fault party can’t be held responsible for any lack of recovery due to the failure of the claimant to attend treatment,” Lee says.

Honesty, he adds, is the best approach and any exaggerations could decrease the value of that person’s contribution to their case.

“In situations where there are injuries and disabilities with no objective evidence — such as chronic pain — credibility is very important,” Lee says, adding the jury and the court can’t see the injury or disability so they have to rely on the word of the claimant.

“You’re only going to be believable if you’re honest,” he says.

If a person claims their injury prevents them from working, doing sports and enjoying life the way they once did, but goes to work or participates in a sport, that can affect their credibility and diminish the strength of the claim, Lee says.

“Even the very best cases involving an extremely serious injury can fail due to dishonesty,” he warns. “It all comes down to likeability and, if there’s a lack of credibility, it will take away from the likeability.”

An extension of the duty to mitigate damages relates to finances, and claimants can help their case by doing everything they can to generate some sort of an income, Lee says, adding if the impairment or disability prevents them from returning to the job they had at the time of the accident, they need to try to find another one, even if they’re not successful at it.

“It could even be part-time, contractual or a one-off — something to demonstrate they are trying,” he says. “Juries like claimants who help themselves,” says Lee. “We’re always encouraging our clients to try to do something.

“We like to see claimants who try to help themselves because we know that insurance companies — and if it goes to trial, juries — will respect that,” he says.

Lee says in his experience the defence likes to question motivation, and insurance companies will delve into the claimant’s desire to go back to work, especially when compensation is involved. That feeds into the argument that the claimant is not nearly as injured as they would have the court believe, he says.

Any effort to work and earn a living or seek training that will lead to an income will reflect well on a claimant and their case, Lee says.

“The jury simply doesn’t like claimants who sit back and expect to be compensated without doing anything,” he says.

Finally, Lee advises anyone involved in a legal action to keep their lawyer abreast of life changes, such as marriage, divorce, moves or even when they’re going on a vacation. The lawyer, he says, needs to be informed about their clients and their lives because they continue to work on the file and deal with the insurance company even if they’re not in touch with the client every day or every week.

“Typically, at our firm, we counsel the client and guide them through the legal process to ensure they’re aware of these requirements,” Lee says.

Click here to read part one where Lee discusses actions that PI claimants can take to boost their chances of a successful outcome.

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