Date: Thu, 20 Sep 2007 07:35

From: Harold Luntz

Subject: Mitigation and Contributory Negligence

Lewis,

I think confusion arises once one recognises that damage itself may be divisible, even though the plaintiff has only one action for all its manifestations. Thus in the seatbelt cases like Froom v Butcher, the contributory negligence applies only to (part of) the damage, but not to the accident itself. That is not a case of mitigation, because the contributory negligence precedes the accident. But once some damage has already occurred, must we say that all failure to avoid subsequent consequences is failure to mitigate, or can we not say it is also contributory negligence? Where a plaintiff with an injury causing instability goes too quickly down some stairs and causes further injury, must we say that the further damage is too remote, as in McKew v Holland, or can we treat it as contributory negligence and, under the modern statutes, apportion the damages?

Harold.

----- Original Message -----
From: "Lewis KLAR"
Sent: Thursday, September 20, 2007 3:17 PM
Subject: Re: ODG: Mitigation and Contributory Negligence

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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