Date: Wed, 10 Dec 2003 19:56:39 +1300

From: Allan Beever

Subject: Mitigation by adoption

Yes, but whether or not we call it mitigation (or how mitigation is correctly understood) there is an issue here isn’t there? I’m not sure how to cash out the difference in law or whether it can make a difference in law, but I am sure that there is a real difference between a case in which a woman has a child who really doesn’t want it and one who has a child and decides that, after all, she would like to keep it. Is it really so clear that we should ignore this?

Allan

On 10/12/2003 3:50 PM, "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.

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