Date: Fri, 21 Sep 2007 13:26

From: David Cheifetz

Subject: Mitigation and Contributory Negligence

Dear all:

I really should know better than to step back into the fray.

I think that the concepts of duty to mitigate and contributory fault are aspects of the same concept: conduct of the injured person which is also a cause of the loss. I agree that the difference between the doctrines is shown if we keep separate the idea of conduct that is also a cause of the accident and conduct which is only also a cause of the injury that is a result of the accident. However, what courts are concerned with is allocating financial responsibility for compensable loss. Here I'm using loss to mean the consequences of injury (damage, harm) in the sense of actual financial loss or the value assigned to physical or psychological injury or property damage not resulting in real consequential loss. So, what courts are concerned about (or should be) are the consequences of the injury. Both of conduct which is contributory fault and conduct which is breach of the duty to mitigate can be concurrent causes of the same consequence, even if the latter is conduct amount to a failure to do something which, if it had been done, would have prevented or lessened either injury or extent of consequences. If we accept that, then we avoid problems such as arose in the UK's Royal Brompton Hospital case where there was the issue over the distinction between the same damage and the same damages (putting it very crudely).

The addition of injury after the initial injury, on account of subsequent to the initial injury conduct by the injured person, does require us to make what may well be, at first instance, a normatively based decision as to whether we'll permit any distinction between exacerbation and new. I think it is correct to say that the distinction is valid and that it is correct to say that we can readily characterize most cases as being enough of one type or the other that they can be fully slotted into one or the other type on historical factual causation principles. Having said that, I agree it's not always going to be a situation of sharp edges and causal linkage will not always be enough. There will be continuum along which, at some point, we say "the change occurred here". In those cases, we will have to make what seem to be arbitrary decisions that the injury is new and not related to the old. Stepping back from the detail, it seems to me that if we're comfortable in saying about the new injury that it's just a coincidence that it occurred as and when it did, then we've slotted the injury into the new injury category on a normative basis. That it's a coincidence doesn't mean there's no causal linkage of some sort. It's just not a relevant causal linkage.

Moving to the concrete, I suppose what I've said above means I'm inclined to agree with aspects of both of what Lewis and Richard said - so I'm agreeing with those who don't agree with each other? - on the sore wrist / amputated hand issue. For me, in our hand example, it would depend on why the hand was amputated. Let's assume it had to be amputated because the patient developed necrotizing fasciitis after surgery. Let's assume there was some relevant amount of delay in treatment or lack of sterility. At present, medical science isn't able to say that that infection, as opposed to an ordinary infection, is in any way causally related to delay or even lack of sterility. I understand that even the presence of some amount of infection normal to the operation doesn't permit doctors to connect the development of necrotizing fasciitis to the infection that existed. So, for present purposes there's new injury even if, intuitively, there seems to be some sort of causal connection - but it's one we assign to the area of coincidence. Or, putting this another way, the litany of error in Paddy Chayefsky's Hospital. On the other hand, the nature of the problem that is the cause of the sore wrist might have complete loss as a probable, or at least highly possible consequence, if the problem is not treated appropriately. So that moves it closer to the area of not-a-coincidence and towards injury which produces consequential loss which might also be the injured person's responsibility, or a subsequent wrongdoer's responsibility.

I'm not sure enough that there's anything more that I can usefully add.

David

--------------------------------------------------------------------------------
From: DAVID CHEIFETZ
Sent: September 20, 2007 5:17 PM
To: Lewis KLAR
Subject: Re: ODG: Mitigation and Contributory Negligence

Lewis and all

As Lewis knows, my initial inclination was to claim something analogous to a Franciscan vow of poverty as a reason for staying away from this thread. Oh well.

A more naive version of me first wrote about the mitigation / contributory fault / break in causation overlap about 33 years ago, officially about 28-30 years ago. It's dealt with at pp 208-211 of my text Apportionment, which must be out of date given how long ago it was published. At least, I'm assuming so because I understand that, on another list subscribed to by essentially insurance defence lawyers, there's a run of messages with people asking if anybody knows any authorities dealing with the issue of a person who suffers a back injury in a car accident. A year later, while still having some symptoms, the person does something silly and falls, re-injuring her back. There's no suggestion that the fall was on account of any lingering weakness in the back. From what I've been told, the subscribers are having some difficulty identifying the issues.

Be that as it may, my view 30 odd years ago was that mitigation and contributory fault should be dealt with analogously to contributory fault, at least where it could be said that that failure to mitigate and the contributory fault caused an indivisible injury. However, as Lewis says, if the injury is a different injury, then there is nothing to apportion. My text isn't clear enough on that point, looking at it now; but then I'm no longer sure how clear my understanding was then.

There is another point to add that the answer to the problem will be, if there is a statute, what the statute says - which may explain the ambiguity in my text. I put it this way because, for example, the Ontario statute refers to conduct of the injured person (actually the plaintiff) which contributed to the damages. The point is that completely divisible injury may contribute to the same damages (loss).

I appreciate that the common law answer might be different, depending on the characterization answer one chooses, which does seem to take us back to whether we have the same damage (injury) or different damage and how one defines the duty to mitigate as and the duty not to engage in conduct amount to contributory fault. In that respect, I wrote in Apportionment, at p. 211, "The duty to mitigate has been described as a duty to take ordinary care of oneself: The "Flying Fish" (1865), 34 L.J.P. 113, 12 L.T. 619 (P.C.). This, of course, is the basis of contributory fault as well". However, I then went on to mention that authorities established that breach of duty to mitigate meant no recovery at all in respect of the loss resulting from that breach: Fleming, Torts, (5th ed). pp. 235-36; Williams, Joint Torts, §§70-71; and McGregor, 14th ed., §214, 230. Then I argued for mitigation being treated like contributory fault - with the latent ambiguity I mentioned above: my failing to distinguish between injury which can be said to have a concurrent cause and new injury caused only by the subsequent conduct.

I'll expand tonight. I'm off to a lecture.

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