Date: Thu, 20 Sep 2007 17:48

From: Robert Stevens

Subject: Mitigation and Contributory Negligence

Lewis wrote:

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.

I am not sure I now understand the distinction. So, in McAuley v London Transport Executive [1957] 2 Lloyd's Rep 500 a workman was injured by his employer's negligence, injuring his wrist. He refused to have an operation contrary to strongly expressed medical advice which resulted in the loss of the use of the hand. The Court of Appeal refused a claim for the lost earnings consequent upon the loss of the use of the hand.

Is that a case of the failure to take steps to lessen a loss (mitigation) or unreasonable conduct producing a more severe injure (causation broken)? Why does it matter? Do you think this is the sort of case where contributory negligence could not apply as a defence? I am not sure I could extract such a rule from the English statute.

I don't myself think there is any separate 'duty' to mitigate. Loss suffered because of the claimant's subsequent unreasonable behaviour is too remote from the wrong (or not proximately caused, or not legally caused, or a novus actus, or outside the scope of liability, or whatever label we are now using).

I am not sure why we would want to differentiate between unreasonable action and inaction.

RS

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