Date: Thu, 20 Sep 2007 08:47

From: Robert Stevens

Subject: Mitigation and Contributory Negligence

In principle, Lewis is clearly correct in the distinction he draws between injury and harm, or, as I would prefer to say, the wrong and the consequential loss. Mitigation only applies to the latter. This is demonstrated by considering the pre-Act law, and, at least in England, damages for breach of contract. Mitigation applies to the calculation of loss consequent upon a breach, not to whether there has been a breach of contract in the first place.

Contributory negligence (or more accurately contributory fault - it could be deliberate stupidity) clearly applies where the claimant's fault has contributed to the occurrence of the wrong. I take Harold's question to be whether it also applies to the loss consequent upon the wrong, so that it overlaps with (replaces?) the common law rules on mitigation.

The answer must be a matter of statutory construction. The English legislation is badly drafted. It refers to contribution to the 'damage.' In Lewis's terminology, does that mean injury or harm? This is a common problem. Commentators frequently use the word 'damage' without clarifying whether they mean injury or harm (e.g. "damage is the gist of negligence").

My reading is that the provision is intended to apply to both injury and harm. Have the rules on mitigation been abolished therefore, as the provision says "a claim in respect of that damage shall not be defeated by reason of the fault of the person suffering the damage"?

The answer must be no. McKew post-dates the legislation. How do we read the Act consistently with McKew? Where the consequential loss suffered is suffered because of the claimant's stupidly going down a staircase with no handrail, when he knows he has a crocked leg which may buckle, the consequential loss is wholly, not partially, attributable to his own fault. The Act does not therefore apply. In less extreme cases of stupidity, the contributory negligence provisions may be operative.

I think.

Robert Stevens

Quoting Harold Luntz:

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?

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