Date: Tue, 25 Sep 2007 15:37

From: Robert Stevens

Subject: Mitigation and Contributory Negligence

2. The NSW CA in Munce v Vinidex Tubemakers Pty Ltd [1974] 2 NSWLR 235 recognised a distinction between mitigation and “aggravation” or “positive exacerbation”. They held that the legal onus of proving failure to mitigate rests on the defendant, but the plaintiff would bear the legal onus of proving that any aggravation was caused by the defendant. They also referred to possible difficulties (which did not arise on the facts of this case where there was a refusal of a medical operation) of allocating particular instances to the one category or the other. The minority judge would have put refusal of a blood transfusion into the “aggravation” category, but I have disputed this in my books.

I can see how the evidential onus shifts when the claimant seeks to recover damages over and above those which could normally have been expected, but I don't understand why the legal onus should shift as between failure to mitigate and aggravation. The reason for the refusal of recovery where the loss is attributable primarily to the claimant's own stupidity seems to me to be the same: we are each of us the party primarily responsible for our own well-being and that doesn't change once we have been the victims of a wrong. Drawing a sharp line between not making better/making things worse doesn't seem helpful to me, at least as presently advised.

4. The High Court in Fazlic v Milingimbi Community Inc (1982) 150 CLR 345, a workers’ compensation case involving refusal of a medical operation, referred to House of Lords authority for the view that mitigation is not based on “causality”. They held that the principle of mitigation under the workers’ compensation legislation was the same as at common law.

Their reason for drawing the distinction is not very persuasive though. It is said:

"Yet one and the same ultimate physical state of disability can scarcely be said to have been ‘caused’ by the initial injury if the refusing worker was at the time unaware of certain facts concerning a recommended treatment (and hence was not unreasonable in his refusal) but to lack the necessary causal relationship when his refusal was made with knowledge which should have led to his acceptance of that treatment."

Precisely the same argument could be made about McKew. If he had not known about the iffy leg when going down the stairs, would the question of whether the subsequent injuries had been 'caused' by the earlier accident have been answered differently?

The answer is that it would have, the state of the claimant's knowledge being highly relevant to whether the subsequent loss is legally caused/too remote/outside the scope of responsibility etc. 'Legal' causation not being simply a matter of what physically happened.

7. The question remains whether there are any pre-Act cases which hold that contributory negligence on the part of the plaintiff that affected only subsequent damage (or further injury) (a) defeated the claim entirely; or (b) defeated that part of the claim that relates to the subsequent damage; or (c) had no effect at all.

Fortunately in England we are not required to trawl through the old cases. The answer where I am sat is The Calliope [1970] P 170. Brandon J. refused to re-import the last opportunity doctrine back into English law and have the scope of the defence turn upon the old law's distinctions. I do see, however, that that doesn't fit easily with the definition of 'fault' contained in the legislation, which is tied to what counts as the defence of contributory negligence at common law. (I did say the Act was badly drafted.) Perhaps we just have to say, on this side of the world, that what can count as such a defence at common law was not set in aspic in 1945, even though there no longer is such a common law defence.

RS

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