----- Original Message -----
To: 'Lewis KLAR'
Sent: Fri Sep 21 08:26:12 2007
Subject: RE: ODG: Mitigation and Contributory Negligence
Dear all:
I really should know better than to step back into the fray.
I think that the concepts of duty to mitigate and contributory fault are aspects of the same concept: conduct of the injured person which is also a cause of the loss. I agree that the difference between the doctrines is shown if we keep separate the idea of conduct that is also a cause of the accident and conduct which is only also a cause of the injury that is a result of the accident. However, what courts are concerned with is allocating financial responsibility for compensable loss. Here I'm using loss to mean the consequences of injury (damage, harm) in the sense of actual financial loss or the value assigned to physical or psychological injury or property damage not resulting in real consequential loss. So, what courts are concerned about (or should be) are the consequences of the injury. Both of conduct which is contributory fault and conduct which is breach of the duty to mitigate can be concurrent causes of the same consequence, even if the latter is conduct amount to a failure to do something which, if it had been done, would have prevented or lessened either injury or extent of consequences. If we accept that, then we avoid problems such as arose in the UK's Royal Brompton Hospital case where there was the issue over the distinction between the same damage and the same damages (putting it very crudely).
The addition of injury after the initial injury, on account of subsequent to the initial injury conduct by the injured person, does require us to make what may well be, at first instance, a normatively based decision as to whether we'll permit any distinction between exacerbation and new. I think it is correct to say that the distinction is valid and that it is correct to say that we can readily characterize most cases as being enough of one type or the other that they can be fully slotted into one or the other type on historical factual causation principles. Having said that, I agree it's not always going to be a situation of sharp edges and causal linkage will not always be enough. There will be continuum along which, at some point, we say "the change occurred here". In those cases, we will have to make what seem to be arbitrary decisions that the injury is new and not related to the old. Stepping back from the detail, it seems to me that if we're comfortable in saying about the new injury that it's just a coincidence that it occurred as and when it did, then we've slotted the injury into the new injury category on a normative basis. That it's a coincidence doesn't mean there's no causal linkage of some sort. It's just not a relevant causal linkage.
Moving to the concrete, I suppose what I've said above means I'm inclined to agree with aspects of both of what Lewis and Richard said - so I'm agreeing with those who don't agree with each other? - on the sore wrist / amputated hand issue. For me, in our hand example, it would depend on why the hand was amputated. Let's assume it had to be amputated because the patient developed necrotizing fasciitis after surgery. Let's assume there was some relevant amount of delay in treatment or lack of sterility. At present, medical science isn't able to say that that infection, as opposed to an ordinary infection, is in any way causally related to delay or even lack of sterility. I understand that even the presence of some amount of infection normal to the operation doesn't permit doctors to connect the development of necrotizing fasciitis to the infection that existed. So, for present purposes there's new injury even if, intuitively, there seems to be some sort of causal connection - but it's one we assign to the area of coincidence. Or, putting this another way, the litany of error in Paddy Chayefsky's Hospital. On the other hand, the nature of the problem that is the cause of the sore wrist might have complete loss as a probable, or at least highly possible consequence, if the problem is not treated appropriately. So that moves it closer to the area of not-a-coincidence and towards injury which produces consequential loss which might also be the injured person's responsibility, or a subsequent wrongdoer's responsibility.
