Jurisdiction(s):
United Kingdom

Key definition

Mitigation definition

What does Mitigation mean? Mitigation describes the reasonable steps a claimant is expected to take, after a breach of contract or a tort (delict in Scotland), to avoid or reduce loss and to give credit for any benefits obtained. Often called the duty to mitigate loss, it is a case law principle applied when quantifying damages, not usually defined by statute, and is used consistently across England and Wales, Scotland, Northern Ireland and Ireland. It is relevant across commercial, employment and personal injury claims. The standard is reasonableness, judged prospectively. A claimant need not incur disproportionate expense, take undue risk, or accept...

Practitioners' guide to mitigation of loss in personal injury claims: principles, burden of proof, expenses, earnings, treatment, and leading authorities

Published by a LexisNexis PI & Clinical Negligence expert

Practice notes

Basic principles

The basic principles of Mitigation are:

Damages are not recoverable for losses a Claimant could have averted by taking reasonable steps
where a claimant goes beyond what is reasonably required and thereby avoids loss, those avoided losses cannot be recovered
the reasonable costs of taking steps to mitigate may themselves be claimed as damages

A defendant who intends to argue that a claimant failed to mitigate must give notice well before the hearing, via the statements of case or otherwise, and advance a concrete case showing what the claimant might reasonably have done.

Test to be applied

The onus of proving a failure to mitigate lies with the defendant. Nonetheless, a claimant’s practitioner should anticipate mitigation arguments and gather evidence to meet them. The claimant’s reasons for particular decisions should be probed in depth. Expert evidence may also be required. Whether the claimant has mitigated their losses is a question of fact for the judge. The test used is objective. Much will...

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Tom Pacey

12 King's Bench Walk

Thomas appears regularly in Fast Track matters and has conducted a number of Multi-Track cases through to trial. He has experience of acting in substantial High Court litigation as Junior Counsel and has appeared in the High Court in his own right on interlocutory matters. He has an extensive paperwork practice and is happy to advise on a CFA. Particular expertise includes road traffic accidents, employers' liability of all kinds, sports injuries and cases in which medical causation is disputed. Lexis®PSL Personal Injury About Lexis®PSL ...

Web page updated on 21/05/2026

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