Date: Thu, 20 Sep 2007 19:35

From: Richard Wright

Subject: Mitigation and Contributory Negligence

I agree with Robert on the loss of the hand being a matter of consequent loss consequent upon the prior injury rather than a new injury, and thus a matter of alleged failure to mitigate damages or superseding cause rather than plaintiff's contributory negligence. Cases of failure due to religious reasons to accept blood transfusions that would have averted death or other serious consequences of an injury are treated as (justifiable or not) failures to mitigate rather than as (alleged) contributory negligence.

However, in response to Robert, a lot turns upon the characterization. If it is contributory negligence (as in the seat belt cases), apportionment rules will apply and plaintiff will not be completely barred from recovering for the avoidable loss (unless the plaintiff has 50+ percent comparative fault in a modified comparative responsibility jurisdiction). However, if it is a matter of failure to mitigate or superseding cause, plaintiff is completely barred from recovering for the avoidable loss. Some (notably the reporters for the Restatement Third) believe that all such distinctions evaporate under comparative responsibility, but I disagree.

-----Original Message-----
From: Robert Stevens
Sent: Thursday, September 20, 2007 12:27 PM
To: Lewis KLAR
Subject: Re: ODG: 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.

I think this might be doubted. An initial injury becoming much worse is not a new or separate injury. Our right to bodily safety is not divisible in this way. So if I am injured, claim and win, I cannot go back to court and claim further damages if my injuries get much much worse (Fitter v Veal 88 ER 1506). By contrast if I am in a car accident, I can claim for my personal injuries and then in a subsequent action claim for the damage to the car (Brunsden v Humphrey). That is because there are two different rights (and two wrongs) in play.

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.

In the Court of Appeal, the claim for the loss suffered as a result of the loss of the hand was rejected on the basis of a failure to mitigate. That could be wrong of course.

What if anything, turns upon this characterisation?

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