Date: Wed, 10 Dec 2003 13:50:05 +1100

From: Andrew Robertson

Subject: Mitigation by adoption

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.

Andrew

At 02:36 PM 10/12/2003 +1300, Allan Beever wrote:

To me at least, Gaudron J’s comment (at least as I understand it) seems to miss the point. The issue is not that the plaintiffs should give the child up for adoption. That would be cruel and no one is saying that or disputing the plaintiffs’ entitlement to keep the child. Rather, it is that, if they choose to keep the child, can they rightly say that the child is a loss. That is, can they claim from the defendant if they keep the child?

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