Date: Fri, 21 Sep 2007 08:43

From: Eoin Quill

Subject: Mitigation and Contributory Negligence

Re Harold's query; I'm afraid I can't offer anything on the original question on the relationship at common law between contributory negligence and mitigation of damage (for what it's worth the leading Irish text follows the distinction between conduct before the wrong was committed and conduct after the wrong, affecting the consequences - McMahon & Binchy, Law of Torts 3rd ed. [20.25]).

I can offer the group a perspective from the Irish statute (Civil Liability Act 1961) passed before I was born, so by the time I was even a law student the distinction was long since a moot point. Under our statute apportionment for contributory negligence applies both to conduct contributing to the accident which forms the basis of the tort and conduct which contributes to the harmful consequences. The Act specifically provides that failure to mitigate is to be treated as contributory negligence in respect of the additional loss resulting from the failure. Thus, the tortfeasor is fully responsible on ordinary tort principles for harmful consequences (that are not too remote) unconnected with the failure to mitigate; in respect of the specific consequences resulting from failure to mitigate, the court is left with a discretion to apportion (so the tortfeasor may still be liable for some of the additional harm, rather than treating it as an all or nothing question). The judicial discretion does permit a judge to find that the plaintiff's failure to offset the consequences is so foolish that all those additional consequences are to be excluded from the damages payable (and they have done from time to time).

The Irish statute is one of those that uses the term 'damage', and I must confess that I have, in my text on Irish tort, used the word injury in a loose sense that might give rise to heart palpitations in some of the list members. The cases and texts are clear, however, that contribution to the adverse consequences of a tort can be sufficient to be taken into account (assuming the other aspects of the defence are made out). If there is also contribution to the events bringing about the accident, this is also relevant in assessing the relative blameworthiness of the parties (our criterion for apportionment).

The net result is that the courts have a provision that gives them the latitude to weigh up all of the matters bringing about the consequences complained of and make what they believe to be a fair allocation of responsibility without too much in the way of technical constraints. On a final tangent, the provisions on concurrent wrongdoers (that's the phrase used - not tortfeasors, as the provisions also apply to other wrongs, including breach of contract) also operate so as to allow significant latitude to the courts to reach a fair allocation of responsibility.

Eoin Quill
School of Law
University of Limerick

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