Date: Thu, 20 Sep 2007 22:17

From: David Cheifetz

Subject: Mitigation and Contributory Negligence

Lewis and all

As Lewis knows, my initial inclination was to claim something analogous to a Franciscan vow of poverty as a reason for staying away from this thread. Oh well.

A more naive version of me first wrote about the mitigation / contributory fault / break in causation overlap about 33 years ago, officially about 28-30 years ago. It's dealt with at pp 208-211 of my text Apportionment, which must be out of date given how long ago it was published. At least, I'm assuming so because I understand that, on another list subscribed to by essentially insurance defence lawyers, there's a run of messages with people asking if anybody knows any authorities dealing with the issue of a person who suffers a back injury in a car accident. A year later, while still having some symptoms, the person does something silly and falls, re-injuring her back. There's no suggestion that the fall was on account of any lingering weakness in the back. From what I've been told, the subscribers are having some difficulty identifying the issues.

Be that as it may, my view 30 odd years ago was that mitigation and contributory fault should be dealt with analogously to contributory fault, at least where it could be said that that failure to mitigate and the contributory fault caused an indivisible injury. However, as Lewis says, if the injury is a different injury, then there is nothing to apportion. My text isn't clear enough on that point, looking at it now; but then I'm no longer sure how clear my understanding was then.

There is another point to add that the answer to the problem will be, if there is a statute, what the statute says - which may explain the ambiguity in my text. I put it this way because, for example, the Ontario statute refers to conduct of the injured person (actually the plaintiff) which contributed to the damages. The point is that completely divisible injury may contribute to the same damages (loss).

I appreciate that the common law answer might be different, depending on the characterization answer one chooses, which does seem to take us back to whether we have the same damage (injury) or different damage and how one defines the duty to mitigate as and the duty not to engage in conduct amount to contributory fault. In that respect, I wrote in Apportionment, at p. 211, "The duty to mitigate has been described as a duty to take ordinary care of oneself: The "Flying Fish" (1865), 34 L.J.P. 113, 12 L.T. 619 (P.C.). This, of course, is the basis of contributory fault as well". However, I then went on to mention that authorities established that breach of duty to mitigate meant no recovery at all in respect of the loss resulting from that breach: Fleming, Torts, (5th ed). pp. 235-36; Williams, Joint Torts, §§70-71; and McGregor, 14th ed., §214, 230. Then I argued for mitigation being treated like contributory fault - with the latent ambiguity I mentioned above: my failing to distinguish between injury which can be said to have a concurrent cause and new injury caused only by the subsequent conduct.

I'll expand tonight. I'm off to a lecture.

David

----- Original Message ----
From: Lewis KLAR
To: Richard Wright; Robert Stevens  
Sent: Thursday, September 20, 2007 3:47:05 PM
Subject: RE: ODG: 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.

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