Date: Lewis Klar

From: Thu, 20 Sep 2007 06:52

Subject: Mitigation and Contributory Negligence

Hi Harold:

I should add that some may confuse the notion of injury and damage, and thus confuse contributory negligence with mitigation of damage. Thus, alcoholism or mental illness which follows a physical injury or damage? To my mind it is clearly a subsequent injury and thus the caselaw dealing with remoteness, novus actus, etc come into play. If not too remote, then of course the initial defendant may remain liable, possibly along with the contributorily negligent plaintiff. But as long as we know what we mean by injury and damage, there is no reason for the confusion between contributory negligence and mitigation. If we cannot clearly distinguish between injury and damage, then I agree that we will not be able to clearly distinguish between contributory negligence and mitigation. But I think we can make the distinction. The distinction also comes into play of course when dealing with causation.

Lewis

>>> Lewis KLAR 09/19/07 11:17 PM >>>

Hi Harold:

As an opening thought, the difference between contributory negligence and the obligation to mitigate, parallels the difference between injury and damage. Contributory negligence is negligence which contributes to the occurrence of the injury. Once injury and hence liability is proved, the process of the assessment of damage, i.e. determining the consequences flowing from the injury, is brought into play. In this respect the plaintiff has an obligation to take reasonable steps to lessen or mitigate those losses which flow from the injury.

I think if we keep the ideas of injury and damage separate, any confusion between contributory negligence and mitigation would evaporate. So I am not really clear as to why there is confusion. Why is there?

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