Queensland Consolidated Acts

CIVIL LIABILITY ACT 2003 - SECT 53

53 Notice requiring mitigation of damages

(1) If a defendant is not satisfied with the action taken by a plaintiff to mitigate damages, the defendant may give the plaintiff written notice suggesting specified action the plaintiff should take to mitigate damages.

(2) The notice may, for example, suggest that—

(a) the plaintiff should undergo medical treatment of a specified kind; or

(b) the plaintiff should return to work or take specified steps to obtain employment; or

(c) the plaintiff should undergo rehabilitation therapy of a specified kind, or undertake specified programs of rehabilitation and training.

(3) Subsection (1) does not limit the plaintiff’s duty to mitigate damages.

(4) In assessing damages for personal injury, the court must—

(a) consider whether the plaintiff has failed to take reasonable steps to mitigate damages by not following suggestions made under this section or a written notice given under the Personal Injuries Proceedings Act 2002 , section 26 ; and

(b) if the notice suggested that the plaintiff undergo medical treatment or rehabilitation therapy of a specified kind—consider whether the notice was accompanied by an offer by the defendant to pay for the cost of the treatment or therapy; and

(c) if it appears the plaintiff has failed to take steps to mitigate damages by not following the suggestions—reduce the plaintiff’s damages to an appropriate extent reflecting the failure if, in all the circumstances, the court considers that the plaintiff’s failure to follow the suggestions was not reasonable.

(5) Subsection (4) does not apply in assessing damages for personal injury if leave to start the proceeding was given under the Personal Injuries Proceedings Act 2002 , section 43 (1) and was not stayed under section 43 (3) of that Act because section 43 (4) of that Act applied.

(6) In this section—

"defendant" means a person against whom a claim for personal injury damages is made whether or not a proceeding for the claim has been started.

"plaintiff" means an injured person making a claim for personal injury damages whether or not a proceeding for the claim has been started.