Date: Wed, 26 Sep 2007 16:07

From: Lewis Klar

Subject: Mitigation and Contributory Negligence

The more I follow this discussion the more I am drawn back to my distinction between negligence which causes a new "injury" (what I think is being referred to in some of the discussion as "aggravation" or "positive exacerbation") and unreasonable conduct which fails to minimize the financial, or intangible, or other consequences of injuries, i.e. losses. The former raises issues of apportionment, contributory negligence, proximate cause, last clear chance etc and the latter raises issues of assessment of damages - how much should the defendant have to pay for the injury he caused.

I do not think we have to fit all of the judgments into the framework. Some may just be wrong. To hold that a person who acts unreasonably by walking down stairs with his injured leg is fully responsible for his fall does not convert this into a failure-to-mitigate case. It might just be an example of a bad decision which inappropriately fails to see that two negligent acts have contributed to an injury and each party should be held partly at fault. Why the second person’s negligence in coming down the stairs should cut out the first party entirely, when it can be said that the second party's negligence was within the risk of injury set up by the original wrongdoer, is not explicable other then on a policy ground - the court just wanted it that way.

I also think that failure to seek medical help might be either, depending upon whether it resulted in a failure to reduce the consequences of an injury (e.g. pain, loss of income) or produced a new injury (what some might refer to as a new "transaction").

There might be grey areas with my approach – e.g. is increased pain a new injury or a loss from an existing injury?) but usually I think the distinction works.

Lewis

>>> Robert Stevens 09/26/07 8:16 AM >>>

Reeves is an important but different sort of case. (For those who don't know it, it concerns a claim based upon the suicide of a sane man in police custody, who was known to be a suicide risk, for the careless failure of the police to stop him. The claim was successful, although contributory negligence applied.)

On its face squaring McKew with Reeves presents a puzzle. Why should the claimant be completely responsible for foolishly deciding to walk down a staircase with no hand rail, whilst Reeves is seemingly not completely responsible for the deliberate decision to take his own life?

The answer cannot be based upon the police assuming responsibility for Reeves by having taken him into custody. They could not escape liability by making it quite clear upon detention that they would not be looking after him. Disclaimers will not work, which they would if it was a voluntary obligation.

I think the answer is that by seizing Reeves the police were exercising a privilege. Reeves, like everyone else, had a right against everyone not to be locked up. The police were exercising a privilege in detaining him against his will. That privilege was qualified: they fell outside it if they failed to exercise care with respect of Reeves' well being.

Put another way, identifying the right relied upon by the claimant is crucial.

<<<< Previous Message  ~  Index  ~  Next Message >>>>>