Date: Thu, 11 Dec 2003 12:29:40 +1100

From: Andrew Robertson

Subject: Mitigation by adoption

The point I was (too briefly) trying to make yesterday is that it is wrong to see the availability of adoption as a mitigation issue. The crucial issue in these cases is the anterior question whether the cost of raising a healthy child is a harm against which the law of negligence should provide protection. Once that question is answered in the affirmative, there is no warrant for reducing the plaintiff's damages on the basis of a failure to mitigate by adoption.

I am not suggesting that 'mitigation is unreasonable' as Jason puts it, but that, in the absence of unreasonable behaviour by the plaintiff, no question of mitigation arises. Jason asks whether 'one might then ask the plaintiff to mitigate in the normal way if they now find being a parent unappealing.' The plaintiff may not be suing (and indeed may not have sought sterilisation) because she finds being a parent unappealing, but because she finds that having an additional child is unaffordable. Cattanach exemplifies this point.

The statement to which Gaudron J was responding in the quote Harold circulated yesterday was that of Meagher JA in CES v Superclinics (Aust) Pty Ltd 38 NSWLR 47, 87:

'The law ordains that a plaintiff must mitigate her damages. In the present context, why does that not require the mother to put the child of which she vociferously complains out to adoption? Why should the law treat seriously her claim for the recovery of expenses which she does not need to occur.'

This misconceives the mitigation principle. The law does not ordain that the plaintiff mitigate her damages. It reduces her damages award if the defendant is able to convince the court that the plaintiff has exacerbated her loss by behaving unreasonably after the breach has occurred. I take unreasonableness to mean a socially unacceptable loss-enhancing response to the situation in which the plaintiff finds herself post-breach. My point is that the decision to keep and raise a child who has been accidentally conceived is sufficiently common (if I might be permitted a little 'armchair empiricism'!) that I don't see how it could be construed as socially unacceptable or unreasonable behaviour. The plaintiff does not need to invoke any 'life is special' argument to avoid a reduction of damages for failure to mitigate because it is for the defendant to show that the plaintiff has unreasonably exacerbated the loss for which the defendant is liable. That is a difficult burden to discharge, and rightly so because if it had not been for the defendant's breach the plaintiff would not find herself having to make the difficult decision which the defendant now seeks to second-guess.

<<<< Previous Message  ~  Index   ~  Next Message >>>>>