Date: Thu, 20 Sep 2007 20:24

From: Robert Stevens

Subject: Mitigation and Contributory Negligence

Sorry, I wasn't at all clear. I know that contributory negligence allows apportionment but that mitigation and superseding cause are all or nothing. That is what The Calliope [1970] P 172, which is what I started with, is all about. My question is what turns upon characterising something as a mitigation issue, rather than a superseding cause. It is sometimes said that where the issue is one of mitigation the onus shifts (i.e. mitigation is sometimes treated as a defence). If that is so (is it?) I need to know what the difference between a loss which is mitigated and a superseding cause is, and why we are drawing the distinction.

If there is nothing which turns upon the characterisation, I'd prefer to deal with the issue of 'duty to mitigate' within the issue of supervening cause (ie as indistinguishable from McKew v Holland).

Rob

Quoting "Wright, Richard":

I agree with Robert on the loss of the hand being a matter of consequent loss consequent upon the prior injury rather than a new injury, and thus a matter of alleged failure to mitigate damages or superseding cause rather than plaintiff's contributory negligence. Cases of failure due to religious reasons to accept blood transfusions that would have averted death or other serious consequences of an injury are treated as (justifiable or not) failures to mitigate rather than as (alleged) contributory negligence.

However, in response to Robert, a lot turns upon the characterization. If it is contributory negligence (as in the seat belt cases), apportionment rules will apply and plaintiff will not be completely barred from recovering for the avoidable loss (unless the plaintiff has 50+ percent comparative fault in a modified comparative responsibility jurisdiction). However, if it is a matter of failure to mitigate or superseding cause, plaintiff is completely barred from recovering for the avoidable loss. Some (notably the reporters for the Restatement Third) believe that all such distinctions evaporate under comparative responsibility, but I disagree.

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