Date: Fri, 19 Dec 2003 09:48:28 –0600

From: Ken Cooper-Stephenson

Subject: Mitigation by adoption

I absolutely agree with Andrew. In my view this was well addressed about 20 years ago by the English Court of Appeal (I think in Emeh).

(1) Mitigation is, as Andrew states, the unreasonable failure to minimize, or exacerbation of, the potential losses. Once it has been held not to be unreasonable for a mother (or the parents) to keep a child, mitigation does not arise.

(2) the concept of "unreasonableness" is more subjective in the context of mitigation than it is for defendant liability: to some extent, a defendant takes the plaintiff as she or he is found, and this includes her religious and cultural beliefs (see, e.g. Janiak in Canada), and also the essay by Guido Calabresi in Ideals, Beliefs, Attitudes and the Law (1985).

(3) if you apply the risk, benefit, burden, social utility equation, it will (almost always, if not always) come down in favour of the mother/parents, because what they are doing is socially useful, and, more importantly, for them as, they have demonstrated, the burden of precautions involves putting her/their child up for adoption is too great.

(4) in my view, the position taken by Gaudron has an important feminist underpinning, although it is not exclusively a gender matter: The description of "bonding" during pregnancy by Taylor J. in the B.C. case of Fredette, where he refused to consider the failure by a very young plaintiff to put her unplanned twins up for adoption as either a novus actus, a failure to mitigate, or contributorily negligent. Women may very well often have a different perspective on this issue, because many of them have carried a child (their child) to term for nine months, and their early life experiences tend to focus on mother-child relationships more so than the early childhood experiences of men (although, again, not exclusively). And

(5) I absolutely agree that! this is a duty of care issue, and it is a matter of distributive just ice, and said so in my essay in Tort Theory (1993). To me, the idea in McFarlane that it is distributively fair to burden the mother or parents with the cost of the upbringing of an unplanned child rather than the person who negligently caused the child to be conceived or born, is extraordinary. The question, as a duty of care matter, is accurately described as a distributive determination; and in my view it will usually be properly answered in favour of the (innocent) plaintiff. Of course, corrective justice has no way of solving this issue. If one were to apply notions of corrective justice as the sole philosophical underpinning of tort law, the solution would be very simple. the wrong should be corrected. Corrective justice has no criteria for excluding the losses from this kind of negligence from the purview o

The plaintiffs in these cases have been put by the negligent defendant into the unchosen position of having to make difficult and extremely onerous unplanned choices concerning their life-plans concerning both personal and financial interests. These choices should have been theirs to make, and should not have been thrust on them by a negligent defendant .... in my view.

As to off-setting advantages, this is a more difficult question. However in Personal Injury Damages in Canada 2nd ed. (1996), I suggest a wide range of situations involving "Overlap of Heads and Reduced Need" (Chapter 8, pp 533-562), including some where non-pecuniary advantages might arguably be set off against pecuniary losses, although I see that that is an arguable point, particularly since the amount of non-pecuniary damages is arbitrary, or, in Canada, at least, influenced by concerns of distributive justice (that society cannot afford to pay more than approx. $300,00 even to a quadriplegic plaintiff - see Andrews for the reasons of Dickson J.

I myself think that the damages in a wrongful birth case should reflect both pecuniary and non-pecuniary harm, and that specific to each case they should be the amount of financial compensation which will enable the plaintiff or plaintiffs to progress with their life-plan with as similar degree of life-fulfillment (happiness or well-being, if you wish) as they might have expected absent the unchosen birth. Sometimes, by awarding a significant part of the cost of raising the child, the plaintiff(s) will be put into a situation in which, balancing the good with the bad, they are as happy as they would have been without the child.

In a way, a proper damages assessment may serve to much better solve a (rather blinkered) seemingly all-or-nothing conclusion at the duty of care or novus actus stages of analysis.

Just a few thoughts on my part! I may find myself making some extended comments on other portions of the dialogue of the ODG over the past few months, in which, because of time pressures, I was unable to engage.

My well-wishes to all.

Ken Cooper-Stephenson,

From: Andrew Robertson
Subject: ODG: Mitigation by adoption
Date: Thu, 11 Dec 2003 12:29:40 +1100

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. Cattenach 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.

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