What is the Duty to Mitigate Damages?
Brief definition: The duty to mitigate damages means that, as a victim of personal injury, you must take reasonable steps to limit your losses. This includes cooperating with medical treatment and reintegration efforts. If you fail to do so, the insurer may reduce your compensation. This obligation is based on Article 6:101 of the Dutch Civil Code (contributory negligence).
What Does the Duty to Mitigate Damages Entail?
As a personal injury victim, you are expected to:
- Undergo medical treatment that can promote recovery
- Cooperate with workplace reintegration
- Follow rehabilitation and physiotherapy as advised
- Seek psychological help for mental health issues
- Accept reasonable adjustments to enable you to work
Limits to the Duty to Mitigate Damages
This duty is not unlimited. You are not required to:
Undergo Risky Treatments
- Surgeries with significant risks or uncertain outcomes
- Experimental treatments
- Treatments with severe side effects
Compromise Your Physical Integrity
- You may refuse surgery based on personal considerations
- Religious objections may play a role
- Fear of surgery is recognized as a valid factor
Make Unreasonable Efforts
- Undergo treatments far from home without reimbursement
- Reintegrate in a way that worsens your condition
- Perform work that does not align with your limitations
When Can Compensation Be Reduced?
The insurer may reduce your compensation if:
- You refuse treatment without valid reason
- You do not cooperate with reasonable reintegration efforts
- You ignore medical advice, delaying recovery
- You engage in activities that hinder recovery
The reduction must be proportional to the extent to which you could have limited the damage.
Reasonableness Test
When assessing the duty to mitigate damages, a reasonableness test applies:
- What can reasonably be expected of this specific victim?
- Which treatments are standard and promising?
- What are the risks and objections to the treatment?
- Does the victim have a valid reason for refusal?
Practical Examples
Example 1: Refusal of Surgery
A victim refuses back surgery due to the risks. The insurer cannot attribute this to contributory negligence if the surgery’s outcome is uncertain.
Example 2: No Physiotherapy
A victim does not follow physiotherapy despite medical advice. The insurer may reduce compensation for loss of earning capacity for the period during which recovery was delayed.
Example 3: Refusal of Psychological Help
A victim with psychological complaints refuses treatment. In cases of prolonged absence, this may affect compensation.
Your Rights in Disputes Over Mitigation
- Request written justification from the insurer
- Seek advice from your own medical expert
- Document your reasons for not following treatment
- Consult a personal injury lawyer in case of disagreements
Frequently Asked Questions About the Duty to Mitigate Damages
Must I Undergo Every Treatment Proposed by the Insurer?
No, you are only required to undergo reasonable treatments. You may refuse risky or experimental treatments. Your doctor—not the insurer—advises on treatment options.
Can the Insurer Force Me to Reintegrate?
The insurer cannot force you, but if you refuse reasonable reintegration without valid reason, it may affect your compensation.
What If I Am Afraid of Surgery?
Fear of surgery is legally recognized as a valid factor. You cannot be compelled to undergo surgery. However, the insurer may propose alternative treatments.
How Do I Prove I Am Cooperating with Recovery?
Keep all appointments, treatment reports, and correspondence with doctors. Document your efforts to recover.
Can the Insurer Reject My Entire Claim for Non-Cooperation?
No, complete rejection is not permitted. The insurer may only reduce compensation for the portion of the damage you could reasonably have prevented.
Where Can I Get Help with Mitigation Disputes in The Hague?
A personal injury lawyer can advise you on your rights and obligations regarding mitigation. Contact us for assistance in The Hague.
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