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ARTICLE · 21 AUGUST 2007

The Measure Of Damages

In personal injury and clinical negligence cases, the need for claimants to mitigate their losses often arises in respect of medical treatment.

United KingdomLitigation, Mediation & Arbitration
Emma Duff
Emma Duff

In personal injury and clinical negligence cases, the need for claimants to mitigate their losses often arises in respect of medical treatment. Can claimants reasonably refuse to undertake treatment that might improve their prognosis and, for example, their ability to return to work?

Two Privy Council rulings are important when considering this issue. In the case of Selvanayagam v University of West Indies [1983], the Privy Council ruled that the burden lies on a claimant who has refused medical treatment to prove that the refusal was reasonable. This ruling sparked immediate criticism as being inconsistent with two decisions of the House of Lords in the 1940s and consequently few defendants made submissions using the judgment.

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