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.
The issue was clarified by the Privy Council in Geest Plc v Monica Lansiquot [2002]. The claimant was employed by the defendant shipping company when she injured her back as a result of catching her foot on metalwork on board a vessel.
She consulted her GP shortly after the accident complaining of pain in her back radiating to her legs. A prolapsed disc was diagnosed by a consultant neurosurgeon and, as there did not appear to be any compression of the nerve roots, conservative management was advised with a recommendation that a scan should be undertaken if the symptoms persisted. The symptoms did continue and the MRI scan revealed discal protrusion but without evidence of neural compression. The treating consultant warned that surgical options might need to be considered, including an open discectomy, but that he could not guarantee a good outcome. Laser decompression was carried out and there was some improvement in the symptoms.
Unfortunately, the claimant suffered a set back. She saw a physician and rheumatologist who both considered that open surgery was the best option, but noted that she was not keen on this and therefore advised further conservative management. Her condition did not improve and she was reviewed again. Surgery was the only treatment option available but there were no assurances that it would cure the pain. The claimant was re-examined before the damages hearing when it was noted that it was unlikely her condition would improve.
At the trial, the defendant company presented no evidence but the defendant's counsel, in his closing speech, argued that the claimant had failed to mitigate by declining the surgical option. In a written judgment, the judge accepted that argument and limited the general damages. He cited Selvanayagam and held that it fell to the claimant to prove on the balance of probabilities that her refusal to undergo surgery was reasonable. On the medical evidence available to him, she had failed to do so. The judge made a total award of £18,767.
The claimant took the case to the Court of Appeal, which reversed the trial judge's decision on mitigation of damage and increased the award to £81,643.
The defendant appealed to the Privy Council which stated that the decision in Selvanayagam could not be relied upon as an accurate statement of the law on this issue. Therefore, the defendant has to prove that the claimant has failed to mitigate his or her loss. If the claimant refuses to undergo medical treatment, the defendant will need to show that the refusal was unreasonable.
The reality is that it will be an unusual case where a defendant is able to show that a claimant's refusal to undergo an operation is unreasonable. In Edmonds v Lloyds TSB Bank Plc [2004], the claimant suffered a soft tissue injury to her coccyx after tripping over some boxes at work. The defendant argued that the claimant had failed to mitigate her losses as she had unreasonably refused treatment involving hydrocortisone injections under general anaesthetic. The claimant argued that she had not undergone the procedures for a number of reasons: she was anxious about them, her GP had advised her they were unlikely to be effective and her expert could not guarantee they would be successful and was of the opinion that her refusal was reasonable. The judge found that it was unreasonable to have refused the procedures and limited the claim for damages.
On appeal the Court of Appeal stated that whether a claimant had failed to mitigate losses was a question of fact and that it would be slow to reverse findings of fact. However, in this case, it was appropriate to intervene as the contention was that the judge had erred in his treatment of the evidence. He had not given proper weight to the cumulative effect of the claimant's reasons for refusing treatment. The judge's decision was set aside and the matter referred to the county court for determination of damages.
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