Tort Mitigation
Overview of Mitigation
A party must take reasonable steps to mitigate his loss arising from another party’s wrong. He may not recover damages for a loss which he suffers, which he could have avoided by taking reasonable action.
A person who has suffered a civil wrong , cannot delay and simply expect the defendant to cover all his cost. He should take immediate steps to minimise his loss. He cannot recover for additional loss which arises by reason of his failure to take reasonable steps to mitigate.
The principle of mitigation applies both to claims for breach of contract and civil wrongs. A person who suffers physical injury must generally seek medical treatment. He should return to work when it is reasonable to do so. Where goods have been damaged or destroyed, they should be repaired or if this is uneconomic, they should be replaced with comparable goods.
Reasonable Mitigation
If the party fails to mitigate his loss, the damages awarded are reduced, by the amount by which it would have been reduced, if he had done, what he ought reasonably to have done. Where he does take reasonable steps to mitigate his loss, and a greater, or other loss, is incurred, he may recover that other loss.
Where the defendant can point to a reasonable course of action, which the claimant could, and should have taken to mitigate the loss, compensation is reduced by the amount to which it would have been reduced, had the relevant steps in mitigation been taken.
Burden on Proof
The onus of proof is on the defendant in a claim to show that the claimant (the innocent party) should have mitigated his loss in a particular way. It is generally a question of fact as to what would, or would not have been reasonable in the circumstances.
The burden is on the defendant to show that the claimant could have avoided the loss or the extent of the loss or that his conduct was unreasonable. What is reasonable to do or to omit, depends on the circumstances of the case. What is reasonable is a question of fact in the circumstances. It is said that the claimant is not obliged to do anything that is not in the ordinary course of things.
Limits to Mitigation
A claimant need not risk his money too much. If the alleged measure in mitigation is speculative or risky, he is not obliged to undertake it. He need not take litigation against third parties which is uncertain or risky. A claimant need not damage or destroy his own property, rights or interests.
A person need not jeopardise his health or take unnecessary risks. In the case of personal injuries, he need not place his life or health at risk by undergoing risky procedures. The claimant need not prejudice or damage his own reputation or injure innocent third parties.
The claimant is not adversely affected by his financial inability to take steps in mitigation. It is reasonable for him not to do that which he cannot afford to do.
Unrequired Mitigation
The party who has suffered a wrong may recover expenses reasonably incurred in mitigation even though they aggravated and did not mitigate the damage. The chain of causation is not broken where the action taken is such that a reasonable and prudent person would take in the ordinary course of business. Reasonable mitigation is not a new or intervening act.
Action taken which in fact reduces the loss, will reduce the damages payable by the party in breach, even though there was no duty to mitigate in the circumstances.
Third Parties
A third party’s actions may reduce or release the claimant’s loss. If the third-party intervenes as part of the same transaction, then it may be taken into account. Where it is collateral, it is not taken into account.
Where a third-party has assisted a person, who has suffered personal injuries, the benefits do not go towards mitigation of damages. This may occur where ex-gratia payments are made or a voluntary or charitable fund is set up. Financial precautions such as insurance are generally ignored. This is confirmed by statute and the Republic of Ireland Civil Liability Act.
Collateral Benefits
The claimant himself may have made advance provision which relieves the loss he might otherwise suffer. He may be insured. Steps taken prior to the breach, are not mitigation in the true sense, although they might have the effect of mitigating the extent of loss that would otherwise arise.
The action taken and benefit received must be in consequence of the breach. Where a person takes evasive action, which incidentally is profitable to him, this is not mitigation. Where the later action is independent, it is not taken into account in mitigation one way or the other.
See the separate section on collateral benefits.