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A client enquired on whether or not their refusal to undertake surgery may cost them later on in their injury claim. This is an interesting question that will vary greatly depending on the information provided by your medical practitioners and their advice concerning the surgery and its risks.

Generally speaking, a victim has a duty to mitigate their losses by taking reasonable steps to minimize the impact of those losses. If they fail to do so, the amount of damages that they receive may be reduced.

However, refusing surgery may not be considered an unreasonable attempt to mitigate loss depending on the circumstances. In the case of Fazlic v Milingimbi Community Inc, an injured claimant refused to undergo back surgery that may improve the effects of his work injury because he was fearful of the outcome of the surgery. It was held by the High Court that what was considered reasonable in refusing surgery depended on the claimant’s state of knowledge at the time of refusal. The claimant’s choice to refuse surgery cannot be said to be unreasonable simply because he failed to consider factors that were unknown to him. In this case, the claimant was told very little about the surgery and its effects on him.

As such, whether or not your damages will be reduced based on your refusal to undergo surgery depends on how well informed you are of that surgery by your medical practitioners and how you approach that information to make a decision.

Another significant consideration to make in this circumstance is the fact that it is up to the negligent party to prove that you failed to mitigate your loss. In the case of ECS Group (Australia) Pty Ltd v Hobby, an injured woman refused surgery 3 times because on the first occasion it was Christmas, on the second occasion her childcare arrangements fell through and on the third occasion she was too scared to undergo the surgery. It was held that the burden of proof was with ECS Group (Australia) on the mitigation issue. There was no evidence on their part to prove that the treating doctors explained to the claimant that the surgery was necessary, nor was there evidence that the doctors considered the claimant’s refusal to be unreasonable. Thus, ECS Group did not successfully prove that the claimant’s refusal was unreasonable.

The main point to take away from this situation is that ultimately, the court will consider all of the evidence concerning the surgery and weigh it against your decision to refuse surgery. If they find that the refusal is unreasonable, they will reduce damages accordingly. This outcome can vary greatly depending on each person’s individual case so it is important that you seek advice from an Accredited Specialist in Personal Injury. Under no circumstances should you attempt to tackle the complexities of your case if you have not been adequately trained to do so.

If you have been victim of an accident where you are unsure about accepting treatment, it is imperative that you contact an accredited specialist to be informed of your legal rights. Strict time limitations apply to your claim so do not hesitate in contacting us for a free case review.