Date: Thu, 20 Sep 2007 20:47

From: Lewis Klar

Subject: Mitigation and Contributory Negligence

Well, I think we have to agree to disagree (what does that actually mean - can we disagree to disagree?).

I do not agree that an amputated hand is the same injury as an injured wrist. To my mind they are different injuries, even though they both affect the body and the same area of the body to boot.

If a person is injured in a car accident, and his injury is exacerbated by the negligence of a doctor, is the faulty driver liable for the exacerbated injury? In answering that question, we apply normal liability principles, and in particular, remoteness principles. We ask whether that new injury was reasonably foreseeable. We do not assume that the new injury is merely a consequential "loss" from the car accident injury.

If a plaintiff's negligence in exacerbating his initial injury "supersedes" the liability of the original wrongdoer, it is not because there was a failure to mitigate. It is because the subsequent injury is too remote from the original negligence. Apportionment does not apply because there is only one legally responsible party for the subsequent injury; i.e. the plaintiff. It has nothing to do with a failure to mitigate. We simply only have one wrongdoer.

When we ask whether losses flowing from injuries are recoverable we apply simple probability theory i.e. possibilities. When we ask whether there is liability for injuries, we apply balance of probability theory. We thus need to distinguish between what is an injury and what is a loss. Your definition which suggests that an amputated hand is the same injury as a sore wrist, simply doesn't do it for me.

Lewis

>>> Robert Stevens 9/20/2007 1:24 PM >>>

Sorry, I wasn't at all clear. I know that contributory negligence allows apportionment but that mitigation and superseding cause are all or nothing. That is what The Calliope [1970] P 172, which is what I started with, is all about. My question is what turns upon characterising something as a mitigation issue, rather than a superseding cause. It is sometimes said that where the issue is one of mitigation the onus shifts (i.e. mitigation is sometimes treated as a defence). If that is so (is it?) I need to know what the difference between a loss which is mitigated and a superseding cause is, and why we are drawing the distinction.

If there is nothing which turns upon the characterisation, I'd prefer to deal with the issue of 'duty to mitigate' within the issue of supervening cause (ie as indistinguishable from McKew v Holland).

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