New South Wales Consolidated Acts

MOTOR ACCIDENTS COMPENSATION ACT 1999 - SECT 136

136 Mitigation of damages

(cf ss 37 (4), 39 MAA)

(1) An injured person is under a duty to mitigate his or her damages.

(2) Accordingly, in assessing damages in respect of a claim, the court is to give consideration to the steps taken by the injured person to mitigate those damages and to the reasonable steps that could have been or could be taken by the injured person to mitigate those damages.

(3) Those steps include the following--

(a) undergoing medical treatment,

(b) undertaking rehabilitation (including the formulation and undertaking of an appropriate rehabilitation program),

(c) pursuing alternative employment opportunities,

(d) giving the earliest practicable notice of the claim in order to enable the assessment and implementation of the above matters.

(4) In proceedings before the court, the onus of proving that an injured person has not mitigated his or her damages as required by this section lies with the person who makes that allegation.

(5) In proceedings before the court, a written report by a person who provided medical or rehabilitation services to the injured person is admissible as evidence of any such steps taken by that person.

(6) If any dispute arises over an alleged failure by the injured person to mitigate his or her damages, the court is to give consideration to and take into account any evidence that an insurer failed to assist in mitigating damages.