Date: Thu, 20 Sep 2007 09:04

From: Neil Foster

Subject: Mitigation and Contributory Negligence

Dear Harold and Lewis

Lewis said first:

Contributory negligence is negligence which contributes to the occurrence of the injury.

This may be so in Canada (I don't know) but in Australia the doctrine has in recent years regularly been applied to the extent of the damage and not just to the occurrence of the injury. Ipp JA in Ackland at [107] quotes the High Court in Astley v Austrust Limited (1999) 197 CLR 1 (at 11, [21]):

A person may also be guilty of contributory negligence even though the negligence of the plaintiff did not contribute to the accident which caused the damage. That is because contributory negligence is concerned with the failure of the plaintiff to protect his or her person or property against damage and not with whether the failure contributed to the accident.

In Ackland Santow JA tries to limit the relevance of contributory negligence at common law to the accident but not the subsequent damage. He then argues that it is open to the court today to declare that the common law would allow apportionment where the plaintiff's negligence only contributed to the damage, not the accident. (See paras [101]-[106].) In this he is a minority; Ipp & McColl JA hold that the common law of contributory negligence would completely deny recovery of any part of the damages which could be said to be caused by that contributory negligence.

On the other hand, Ipp JA draws a distinction between (1) the psychological injury following the accident, and (2) the alcoholism and "binge eating" said to flow from that psychological injury. He took the view that probably only (2) would be precluded by the common law - paras [139]-[140]. On that basis there needed to be a new trial to determine as a matter of fact the impact of the various forms of harm.

One could try to maintain the difference between contributory negligence and mitigation as set out in Street on Torts (12th ed) at 641: "Contributory negligence is concerned with negligence of the claimant before the cause of action has matured by the occurrence of some damage. After damage has occurred and an action in tort is vested in the claimant, he has a duty to take care to mitigate his loss".

But how do we view an action of the plaintiff's which increases his damage? Here is the nub of the problem - it does not sound like good English to say that a plaintiff who as a result of drinking and over-eating has made his already bad condition worse, or has chosen to walk down some steep steps knowing he that has a crook leg, has simply "failed to mitigate". It looks much more like he has done something positive. In terms of the current NSW legislative provision, s 9 of the Law Reform (Miscellaneous Provisions) Act 1965, it looks like he "suffers damage as the result partly of the claimant’s failure to take reasonable care (‘contributory negligence’) and partly of the wrong of [the] other person". Given the focus on the damage, not the accident, then it seems this would be contributory negligence.

If Harold's view was adopted and McKew ought to be regarded in this light (rather than as precluding recovery based on remoteness) one important consequence is that it will up to the defendant to show that the claimant was contributorily negligent, rather than up to the plaintiff to prove causation including that the damage was not too remote. (This point is made in Clerk & Lindsell 19th ed para 29-08 at n 52).

Regards
Neil F

Neil Foster
Newcastle Law School
Faculty of Business & Law
MC159c, McMullin Building
University of Newcastle
Callaghan NSW 2308
AUSTRALIA
ph 02 4921 7430
fax 02 4921 6931

>>> Harold Luntz 20/09/07 4:35 >>>

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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