Date: Tue, 25 Sep 2007 14:26
From: Harold Luntz
Subject: Mitigation and Contributory Negligence
Thanks to all those who responded to my original query as to the relationship at common law between mitigation of damage and contributory negligence. I hope you will forgive me if I don’t mention you individually by name, but respond to some of the points raised. I shall also rely on Australian authorities, by which a single judge in NSW would be bound. However, there are probably similar authorities in the other jurisdictions.
1. I asked for the relationship at common law for two reasons. First, the case which brought the issue to the fore had to be dealt with at common law because the facts preceded the apportionment statute, which was not retrospective in operation. Secondly, as Astley v Austrust Ltd  HCA 6; (1999) 197 CLR 1 rather brutally reminded us, the apportionment statute as originally enacted applied only to fault that would have amounted to contributory negligence at common law (and the High Court, rightly or wrongly, treated the common law as in effect frozen at the date of the introduction of the Act). Even the amendments in Australia to the Acts following Astley so as to reverse its effect in relation to claims based on breach of contract, still apply only to liability in tort to which a defence of contributory negligence is available at common law. So interpretation of the word “damage” in the statute seems to be irrelevant. We need to know the position at common law.
2. The NSW CA in Munce v Vinidex Tubemakers Pty Ltd  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.
3. The court in Munce followed Adams v Ascot Iron Foundry Pty Ltd (1968) 72 SR (NSW) 120 (CA), which raised similar issues where the plaintiff has failed to take up a job offer and the onus of proof varies according to whether the reason assigned was inability to perform the work owing to the injury or an unreasonable refusal to take up a position within the plaintiff’s remaining capacity.
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.
5. The High Court has on several occasions cited McKew v Holland with apparent approval, yet it is inconsistent with its approach to causation in relation to the initial accident and to subsequent aggravation by medical treatment. In relation to the initial accident even gross negligence on the part of the plaintiff does not sever the causal connection to the defendant’s negligence (March v E & M H Stramare Pty Ltd (1991) 171 CLR 506). Subsequent negligence in the course of medical treatment will only sever the causal connection to the defendant’s negligence if it “is ‘inexcusably bad’ …, or ‘completely outside the bounds of what any reputable medical practitioner might prescribe’ … or ‘so obviously unnecessary or improper that it is in the nature of a gratuitous aggravation of the injury’ … or ‘extravagant from the point of view of medical practice or hospital routine’” (Mahony v J Kruschich (Demolitions) Pty Ltd (1985) 156 CLR 522). The negligence of the plaintiff in McKew could hardly be described by any of these terms and should not have been treated as the sole cause of the subsequent harm.
6. I have a vague memory that Glanville Williams was responsible for the drafting of the Irish apportionment statute, which would explain why it treats mitigation of damage as subject to apportionment in the same way as contributory negligence.
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.
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