Date: Fri, 5 Oct 2007 10:15

From: David Cheifetz

Subject: Mitigation and Contributory Negligence

Lewis

I came across this interesting case recently Badger v The Ministry of Defence [2005] EWHC 2941 (QB) (16 December 2005) which you could look at to test your analyses. Badger died of lung cancer. The evidence was that the cancer was caused both by his smoking and his work exposure to asbestos.

Para. 1 (in part): The Claimant is the widow of Reginald Badger, who died of lung cancer on 6 May 2002 at the age of 63 years. He had been employed by the Ministry of Defence between 1954 and 1987 as a boiler maker, for most of that period at its dockyard at Devonport, but also in Gibraltar. In the course of his work, he was exposed to asbestos dust and fibres, which were causative of the lung cancer that killed him. He also smoked. His smoking was also causative of his cancer. He developed the cancer within the year before his death. According to the judgment (para 43) he gave up smoking within a few months before the cancer was detected. The judge found that Barker's conduct in smoking was contributory fault and reduced the award by 20%.

Let's assume he smoked for about 40 years in total, the cancer had been diagnosed 20 years earlier, treated, went into recession, but he still smoked afterwards. Is the first 20 years contributory fault (the act of smoking and the act of not stopping when he ought to have known etc) and the last 20 years breach of the duty to mitigate (the act of smoking and the act of not stopping when he ought to have known etc). Should we treat the consequences any differently? Do we discount the 20% contributory fault factor - which is based on blameworthiness - under the mitigation analysis because it's now post and has become possibilistic?

David

-----Original Message-----
From: Lewis KLAR
Sent: September 26, 2007 11:08 AM
Subject: Re: ODG: 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.

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