Mitigation (law)

Mitigation in law is the principle that a party who has suffered loss (from a tort or breach of contract) has to take reasonable action to minimize the amount of the loss suffered. As stated by the Canadian Federal Court of Appeal in Redpath Industries Ltd. v. Cisco (The),[1] "It is well established that a party who suffers damages 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.

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: 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.[2]

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).

Iain Drummond notes that in English law there is no duty to mitigate loss. Rather, the principle is that "damages will be limited by an assumption that [a plantiff] has taken reasonable steps in mitigation of loss", regardless of whether they have not in fact taken such steps.[3]

The issue of what is reasonable is especially contentious in personal injury cases where the plaintiff refuses medical advice. This can be seen in cases such as Janiak v. Ippolito.[4]

The antonym of mitigation is aggravation.

References
  1. 1993 CanLII 3025 (F.C.A.)
  2. "mitigation of damage" in Trischa Mann and Audrey Blunden (eds) Australian Law Dictionary (2010, Oxford University Press, ISBN 9780195557558)
  3. Drummond, I, Is “duty to mitigate loss” a misnomer?, Shepherd and Wedderburn LLP, published 11 February 2016, accessed 16 January 2021
  4. 1985 CanLII 62 (S.C.C.)

See also


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