Mitigation Flashcards
(32 cards)
What is mitigation?
‘Duty to mitigate’
- A claimant will not be able to recover compensatory damages for any loss which they could have avoided by taking reasonable steps to mitigate their loss.
British Westinghouse Electric and Manufacturing Co v Underground Electric Railways of London
‘[The principle of mitigation] imposes on a planting the duty of taking all reasonable steps to mitigate the loss consequent on the breach, and dewars him from claiming any part of the damage which is due too his neglect to take such steps’
- [The principle] does not impose on the plaintiff an obligation to take any steps which a reasonable and prudent man would not ordinarily take in the course of his business’
Brace v Calder [1895] 2 QB 253 (CA)
- a wrongfully dismissed employee may be required to accept re-employment from former employment
Yetton v Eastwood Froy Ltd [1967] 1 WLR 104
- However, a wrongly dismissed employee will not be required to accept re-employment if the new job would involve a reduction in status; alternative employment would be more likely to be permanent; or the employee - employer relationship had been damaged
Payzu Ltd v Saunders [1919] 2 KB 581 (CA)
- Particularly in commercial cases, the claimant may be expected to renegotiate the terms of the contract with the defendant if this would reduce the amount of loss suffered
McAuley v London Transplant Executive [1957] 2 Lloyd’s Rep 500 (CA)
A claimant who has been physically injured by the breach may be expected to undergo an operation to reduce or eliminate the injury, particularly where this is supported by firm medical advice
Selvanayagam v University of the West Indies [1913] 1 WLR 585 (PC)
- However, a claimant who has acted reasonably in refusing to undergo medical treatment, (e.g. where there is a risk of complications) will not be held to have failed in their duty to mitigate
Banco de Portugal v Waterlow & Sons Ltd [1932] AC 452 (HL)
- W contracted to print banknotes for BP. In breach of contract, they delivered a large number of banknotes to a criminal, who put them into circulation in Portugal
- On discovering this, BP withdrew the whole issue and undertook to exchange the banknotes that had been illegally circulated for other notes
- W contended that its liability was confined to the cost of printing new banknotes, and that the further loss suffered by BP was due to its own voluntary action in giving value for the illegally circulated banknotes
- Court held that W was liable for the further loss as the bank’s conduct was reasonable, given its commercial obligations to the public
What is contributory negligence?
The Old rule at common law was that contributory negligence operated asa complete defence.
—> ‘where any person suffers damage as the result partly of his own fault and partly of the fault of any other person or persons, a claim in respect of that damage shall not defeated by reason of the fault of the person suffering the damages, but the damges recoverable in respect thereof shall be reduced to such extent as the court thinks just and equitable having regard to the claimant’s share in the responsibility for the damages.’
Jones v Livox Quarries Ltd [1952] 2 QB 608 (CA)
- J was riding on the back of a ‘traxcavator’ at work, contrary to order issued by L, when another vehicle driven by another employee of L crashed into the back of it, seriously injured
- L argued that J had contributed to his injuries by his own contributory negligence in riding on the back of the tractor
- Court held that the award of damages payable to J should be reduced by 20% due to his contributory negligence
Froom V Butcher [1976] QB 286 (CA)
- F suffered head and chest injuries and a broken finger when the car he was driving was negligently hit by B’s car
- F was not wearing a seat belt at the time
- Court held that F was contributory negligent in respect of the injuries he could have avoided had he worn a seat belt. His damages were reduced by 20%
Forsikringsaktieelskapet Vesta v Butcher [1988] 3 WLR 565 (CA):
What are the three categories?
Category 1- cases are those where the defendant is in breach of a strict contractual duty
Category 2- cases are those where the defendant is in breach of a contractual duty of care
Category 3- cases are those where the defendant is in breach of a contractual duty of care that co-exists with a tortious duty of care.
Barclays Bank plc v Fairclough Building Ltd [1995] QB 214 (CA)
- F contracted to clean the roofs of B’s warehouse, which were made of asbestos cement sheeting
- In breach of its contractual obligations, F did the cleaning in such a way that it caused the warehouse to be contaminated with asbestos fibres and dust, requiring remedial work of £4 million
- F alleged that B was contributorily negligent as it had failed to supervise the work
- Court held that contributory negligence was not applicable as this was a category 1 case. F had breached its strict contractual obligations to carry out the work in accordance with contractual specifications
Raflatac Ltd v Eade [1999] 1 Lloyd’s Rep 506
- E, who was R’s main contractor in respect of alteration works to be carried out at R’s premises, sub- contracted the installation of sprinkler systems to a third party, M.
- M’s negligence resulted in damage of R’s property. R sued E in contract, and E alleged that there had been contributory negligence on the part of R.
- Court acknowledged that E had breached its contractual duty of care ie. its contractual obligation to exercise reasonable care and skill in the conduct of its work on R’s premises, including reasonable care in procuring M to carry out some of the works in question.
UCB Bank v Hepherd Winstanley & Pugh [1999] Lloyd’s Rep PN 963 (CA)
- UCB claimed against its solicitor, HW, in respect of loans made to third parties by UCB
- HW had been negligent in ensuring that full security four the loans was obtained. As a consequence, when the borrower defaulted and the security was enforced, UCB received less money than it would have had full security
What is the law that currently stands on a defendant that breaches a double duty of care (contractual and tortious)?
- A defendant who is in breach of a double duty of care is able to rely on contributory negligence in order to reduce the amount of damages payable
Where is this quote from?:
“The debater is not liable for loss suffered by the creditor to the extent that the creditor to the extent that the creditor contributed to the non-performance or its effects’.
EU Draft Common Frame of Reference
Where is this quote from?:
“ where the harm is due in part to an act or omission of the aggrieved party or to another event as to which that party bears the risk, the amount event as to which party bears the risk, the amount of damges shall be reduced
UNIDROIT Principles of International Commercial contracts
What is the diminution in value?
- the diminution in value measure awards the claimant the financial advantage which the claimant has lost by being deprived of the benefit to which they were contractually entitled.
What is the cost of cure?
- The cost of cute measure awards the claimant the additional cost which the claimant would have to incur to put themselves into as if they had received the benefit to which they were contractually entitled
Tito v Waddell (No2) [1977] Ch 106
- A British company mining phosphate on Ocean island contracted with the islanders to restore the land mined by replanting trees on the island but failed to do so
- under the cost of cure measure the islanders would be entitled to damages assessed on the basis of what it would cost to replant the island, which amounted to thousands of pound
- under the diminution in value measure, islander would be entitled to damages assessed on the basis of the difference in value between the island as it currently was and as it would be if replanted, which amounted to a few hundred pounds
Rudely Electronics & Construction v Forsyth [1944] 1 WLR. 650 (CA)
- R constructed to build a swimming pool for F in F’s garden. The contract specified that the pool should have a diving area 7 feet 6 inches deep.
- on completion, the pool was suitable for diving but the diving area was 6 feet deep
- R’s breach of contract had no adverse effect on the value of the property. Under the diminution of value measure, F would be entitled to no damages
Addis v Gramophone [1909] AC 488 (HL)
A was wrongfully dismissed fro his employment by G. Court awarded him the salary and commission he would have earned had he remained in employee not for the relevant period, but refused to award damages for the injury to his feelings due to the harsh and humiliating manner of the dismissal.
Hobbs v London and South Western Railway (1874-1875))’.
- his family were compelled to get out at the wrong station by SWR. As it was late at night, they had to walk five miles home. Court held that H was entitled to damges for the physical inconvenience suffered as a consequence of the walk
