Date: Thu, 20 Sep 2007 17:13

From: Lewis Klar

Subject: Mitigation and Contributory Negligence

Hello:

First in reference to Neil's comment about contributory negligence relating to the injury and not to the accident. This is also the case in Canada. As you will note, in my first message I defined contributory negligence in terms of the injury and not of the accident. As you all know, this can occur if the plaintiff's conduct contributes to the accident itself, if the plaintiff fails to take reasonable steps to reduce the risk of an injury should an accident occur (the seat belt example), or if the plaintiff unreasonably exposes herself to a risk of an accident occurring in the first place (getting into a car with a drunk driver). Thus I do not think there is any disagreement there.

Second in reference to Harold's e-mail, I still think that the essential difference is between injury and loss (or damage) which flows from the injury. It does not matter whether we are dealing with negligence on the part of the plaintiff which precedes the initial injury or which contributes to producing additional, subsequent injuries (eg McKew) after the original injury has already occurred. Contributory negligence is negligence which is both the factual and proximate cause of the initial injury or subsequent additional injuries. Thus, where subsequent injuries flow from the original accident, whether or not the plaintiff was contributorily negligent and should thus be partly (or even fully) responsible for these injuries should be resolved on the same basis as all other remoteness questions. (Equally for the defendant - the plaintiff's negligence might be a novus actus, for example.) It is not, in my respectful opinion, an issue of failure to mitigate unless we are talking about the failure to take reasonable steps to lessen the losses which flow from the injury or injuries.

Perhaps I can best illustrate my point by example. If the plaintiff's car is damaged in a motor vehicle accident the defendant will of course be responsible for the reasonable financial losses which the plaintiff will suffer as a result of this car damage. If the plaintiff decides to remain at home for one month while his car is being repaired can he claim for one month's loss of salary? Obviously not. He has a duty to mitigate his loss and choosing to stay home rather than to take a taxi to work, or public transport, or renting a vehicle is clearly unreasonable. No one I think would think this should be analysed as an issue of contributory negligence; it is clearly a failure to mitigate issue. The plaintiff has unreasonably failed to lessen the consequences flowing from the initial injury (in this case property damage). If however the plaintiff decides to hitchhike to work while his car is being fixed and gets into a car with a drunk driver who is involved in an accident and the plaintiff is seriously injured, this cannot be argued as case of failure to reasonably mitigate. A new injury was produced. It might therefore be contributory negligence, if indeed it was negligent.

In the case of McKew or other examples where a plaintiff's unreasonable conduct after an accident produces an additional or more severe injury, this is (potentially) a matter of contributory negligence. It is not to my mind a failure to mitigate one's losses resulting from the initial injury. Subsequent injuries are not losses - they are injuries.

Thus, I reiterate my argument that if we keep the question of injury separate from the question of losses consequent on that injury (damage), the problem of distinguishing between contributory negligence and the failure to mitigate is more apparent than real.

Lewis

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