Mitigation in

law Law is a set of rules that are created and are enforceable by social or governmental institutions to regulate behavior,Robertson, ''Crimes against humanity'', 90. with its precise definition a matter of longstanding debate. It has been vario ...

is the principle that a party who has suffered loss (from a

tort A tort is a civil wrong that causes a claimant to suffer loss or harm, resulting in legal liability for the person who commits the tortious act. Tort law can be contrasted with criminal law, which deals with criminal wrongs that are punishable ...

breach of contract Breach of contract is a legal cause of action and a type of civil wrong, in which a binding agreement or bargained-for exchange is not honored by one or more of the parties to the contract by non-performance or interference with the other party ...

) has to take reasonable action to minimize the amount of the loss suffered. As stated by the

Canadian Federal Court of Appeal The Federal Court of Appeal (french: Cour d'appel fédérale) is a Canadian appellate court that hears cases concerning federal matters. History Section 101 of the Constitution Act, 1867 empowers the Parliament of Canada to establish "addit ...

in ''Redpath Industries Ltd. v. Cisco (The)'', "It is well established that a party who suffers

damages At common law, damages are a remedy in the form of a monetary award to be paid to a claimant as compensation for loss or injury. To warrant the award, the claimant must show that a breach of duty has caused foreseeable loss. To be recognised at ...

as a result of a breach of contract has a duty to mitigate those damages, that is to say that the wrongdoer cannot be called upon to pay for avoidable losses which would result in an increase in the quantum of damages payable to the injured party." The onus on showing a failure to mitigate damages is on the

defendant In court proceedings, a defendant is a person or object who is the party either accused of committing a crime in criminal prosecution or against whom some type of civil relief is being sought in a civil case. Terminology varies from one jurisdic ...

. In the UK, Lord Leggatt describes the "function of the doctrine of mitigation" as enabling the law Iain Drummond notes that in

English law English law is the common law legal system of England and Wales, comprising mainly criminal law and civil law, each branch having its own courts and procedures. Principal elements of English law Although the common law has, historically, be ...

there is no ''duty'' to mitigate loss. Rather, the principle is that "damages will be limited by an assumption that plaintiffhas taken reasonable steps in mitigation of loss", regardless of whether they have not in fact taken such steps. Even where

case law Case law, also used interchangeably with common law, is law that is based on precedents, that is the judicial decisions from previous cases, rather than law based on constitutions, statutes, or regulations. Case law uses the detailed facts of a l ...

speaks of a "duty to mitigate", the duty has been cited as "not a demanding one". The issue of what is reasonable is especially contentious in

personal injury Personal injury is a legal term for an injury to the body, mind or emotions, as opposed to an injury to property. In common law jurisdictions the term is most commonly used to refer to a type of tort lawsuit in which the person bringing the suit (t ...

cases where the

plaintiff A plaintiff ( Π in legal shorthand) is the party who initiates a lawsuit (also known as an ''action'') before a court. By doing so, the plaintiff seeks a legal remedy. If this search is successful, the court will issue judgment in favor of the p ...

refuses medical advice. This can be seen in cases such as ''

Janiak v. Ippolito Janiak is a surname. Notable people with the surname include: * Andrew Janiak, American professor of philosophy * Claude Janiak (born 1948), Swiss politician and lawyer * Edward Janiak (1952-2021), Polish bishop and theologian * Jeff Janiak (born 1 ...

''. The

antonym In lexical semantics, opposites are words lying in an inherently incompatible binary relationship. For example, something that is ''long'' entails that it is not ''short''. It is referred to as a 'binary' relationship because there are two members ...

of mitigation is aggravation.

Examples

For example, consider a tenant who signs an agreement to rent a house for a year, but moves out (and stops paying rent) after only one month. The landlord may be able to sue the tenant for

: however, the landlord must mitigate damages by making a reasonable attempt to find a replacement tenant for the remainder of the year. The landlord may not simply let the house lie empty for eleven months and then sue the tenant for eleven months' rent. The actions of the defendant may also result in the mitigation of damages which would otherwise have been due to the successful plaintiff. For example, the ''Civil Law (Wrongs) Act 2002'' (ACT) provides that mitigation of damages for the publication of defamatory matter may result from any apology made by a defendant and any correction published
s. 139I
. In ''Manton Hire & Sales Ltd v Ash Manor Cheese Co Ltd.'' (appeal judgment in 2013), the hirer of an unsuitably wide

fork lift truck A forklift (also called lift truck, jitney, hi-lo, fork truck, fork hoist, and forklift truck) is a powered industrial truck used to lift and move materials over short distances. The forklift was developed in the early 20th century by various ...

was justified in rejecting the supplier's proposed mitigation when the supplier had "only

ade Ade, Adé, or ADE may refer to: Aeronautics *Ada Air's ICAO code * Aden International Airport's IATA code *Aeronautical Development Establishment, a laboratory of the DRDO in India Medical * Adverse Drug Event *Antibody-dependent enhancement * A ...

an unclear offer to modify the product without specifying "the exact extent" to which the truck was to be modified. In the case of ''Thai Airways International Public Company Ltd v KI Holdings Co Ltd.'' (2015), a number of mitigating actions are listed which had been taken by

Thai Airlines Thai Airways International Public Company Limited, trading as THAI (, th, บริษัท การบินไทย จำกัด (มหาชน)) is the flag carrier airline of Thailand. Formed in 1961, the airline has its corporate ...

in response to a supplier's failure to deliver airplane seating which had been ordered for its planes. In this case the airline had a number of alternative means of mitigating its loss.Davies, G.
Mitigating loss: Get the balance right
published 9 June 2015, accessed 12 May 2021

References

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Examples

References

See also