Date: Thu, 20 Sep 2007 18:08

From: Lewis Klar

Subject: Mitigation and Contributory Negligence

Thanks Robert for providing me with a concrete example which I hope can help me explain my approach.

While I have not read McAuley, if I were the judge this is how I would have approached it.

The plaintiff's loss of a hand is a new injury. It was factually caused by the employer's negligence and the employee's arguably unreasonable refusal to follow his doctor's advice.

Should the employer be liable for the lost hand? A remoteness issue. If we say that the employee's decision was so unreasonable as to break the chain of causation between the employer's negligence and the lost hand, then it is a novus actus, and the employer need not pay for it.

If, on the other hand, we think that although unreasonable, the employee's decision was not so unreasonable as to break the chain of causation between employer and lost hand, then we have a case of contributory negligence (not failure to mitigate). The employee's own negligence contributed to the occurrence of a new injury. Apportion according to the Act the losses flowing from a lost hand.

We can of course argue that the employee's decision was not unreasonable at all, and that the employer should be fully responsible for the lost hand.

Let me change it up. Forget about the lost hand. Assume the plaintiff was a typist. He could not type because of his sore wrist. But there was a cheap device he could buy which would allow him to type (eg by talking into a machine). He refuses to purchase the device. He claims full loss of income because he cannot type. Here is a duty to mitigate issue. No new injury. But failure to take reasonable steps to lessen a loss. No recovery for those losses - failed to mitigate. No apportionment of these losses.

Lewis

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.

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