mitigation (law)
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Mitigation in
law Law is a system A system is a group of Interaction, interacting or interrelated elements that act according to a set of rules to form a unified whole. A system, surrounded and influenced by its environment, is described by its boundari ...
is the principle that a party who has suffered loss (from a
tort A tort, in jurisdiction, is a (other than ) that causes a claimant to suffer loss or harm, resulting in for the person who commits the tortious act. It can include intentional infliction of emotional distress, negligence, financial losses, ...

tort
or
breach of contract Breach of contract is a legal Law is a system of rules created and law enforcement, enforced through social or governmental institutions to regulate behavior,Robertson, ''Crimes against humanity'', 90. with its precise definition a matter of ...
) 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 Canada, Canadian appellate court that hears cases concerning federal matters. History Section 101 of the Constitution Act, 1867 empowers the Parliament of Canada to establish "ad ...
in ''Redpath Industries Ltd. v. Cisco (The)'', "It is well established that a party who suffers
damages At common law In law, common law (also known as judicial precedent or judge-made law, or ) is the body of law created by judges and similar quasi-judicial by virtue of being stated in written opinions. ' is the most-used legal dictionary used ...
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 A person (plural people or persons) is a being that has certain capacities or attributes such as reason Reason is the capacity of consciously applying logic by Logical consequence, drawing conclu ...
. 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 In law, common law (also known as judicial precedent or judge-made law, or case law) is the body of law created by judges and similar quasi-judicial tribunals by virtue of being stated in written opinions. ''Black ...
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. 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, Anglo-American jurisdictions the term is most commonly used to refer to a type of tort lawsuit in which the person bring ...
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 (law), judgment ...
refuses medical advice. This can be seen in cases such as '' Janiak v. Ippolito''. The antonym of mitigation is Aggravation (law), 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
breach of contract Breach of contract is a legal Law is a system of rules created and law enforcement, enforced through social or governmental institutions to regulate behavior,Robertson, ''Crimes against humanity'', 90. with its precise definition a matter of ...
: 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 was justified in rejecting the supplier's proposed mitigation when the supplier had "only [made] 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 in response to a supplier's failure to deliver Airline seat, 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


See also

* Mitigating factor Legal terminology Civil law (common law) {{law-term-stub