Date: Wed, 10 Dec 2003 10:01:16 -0500

From: Jason Neyers

Subject: Mitigation by adoption

Dear Colleagues,

I want to thank everyone for their discussion on this issue since it has really helped me clarify my views.

I think that these types of cases are ones where the mechanical/surface application of the law, rather than the casuistic, arguably leads one down the incorrect path (which is what Allan was poking at, I think). For example, Andrew asserts that it is obviously unreasonable to take into account the fact that the plaintiff has not mitigated or has kept the baby. If this is the case, then it follows that this fact cannot be taken into account when assessing damages and she is entitled to financial compensation on the application of ordinary principles which do not allow set-offs between different types of damages. (I mean this with no hostility or disrespect to Andrew or anyone else, btw).

But this dodges the question of why it is unreasonable to demand mitigation. I do not know Andrew's answer (since it appears he assumes it is self-evident) but I will assume that many people would say "because life is special" and/or that human life cannot be treated as if it were just any other asset/liability. I can follow that line of reasoning. But when it comes to assessing damages, the plaintiff backs away from the implicit assertion that is hidden in the "mitigation is unreasonable argument" and then asserts that the wrongful birth is to be treated as if it were just any other legal wrong in which the normal rules of financial compensation should apply. To be frank, I find that to be somewhat contradictory. If "life is special" gets you over the mitigation hump, then it is something that should factor into the assessment of damages as well.

This is the approach that Lord Scott employed in Rees when he worked through the law with a nuanced argument that took into account the unique nature of human life. This also seems to be the import of the quote of Gleeson CJ (which Jamie mentioned) from Cattanach v Melchior (which I still have to read).

If on the other hand, life is not so special when it comes to the issue of damages, then I think one might then ask the plaintiff to mitigate in the normal way if they now find being a parent unappealing. The plaintiff would of course then be entitled to the costs, if any, involved in mitigating as Jennifer suggests.

Sincerely,

Andrew Robertson wrote:

Fleming notes (9th ed, p 286) that '[t]he burden is on the defendant to prove that the plaintiff's refusal to mitigate was unreasonable' and this has now been accepted by the PC as the correct approach (see Geest plc v Lansiquot [2003] 1 All ER 383). So, the question here is whether, the sterilisation having failed and a child having been conceived, the plaintiffs' decision to keep the child is unreasonable. Clearly it is not.

--
Jason Neyers
Assistant Professor of Law
Faculty of Law
University of Western Ontario
N6A 3K7
(519) 661-2111 x. 88435

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