Duhaime's Law Dictionary


Mitigation of Damages Definition:

The obligation upon a person who sues another for damages, to minimize - mitigate - those damages, as far as reasonable.

Related Terms: Damages

Sometimes referred to as the defendant's non-liability towards avoidable consequences.

Justice (Lord) Haldane of the English House of Wales, in the 1912 decision of British Westinghouse Electric & Manufacturing Co. Ltd. v. Underground Electric Rlys Co. of London Ltd. noted this, in the context of a breach of contract case:

"(A)s far as possible, he who has proved a breach of a bargain to supply what he contracted to get is to be placed, as far as money can do it, in as good a situation as if the contract had been performed.

"The fundamental basis is thus compensation for pecuniary loss naturally flowing from the breach.

"But this first principle is qualified by a second, which imposes on a plaintiff the duty of taking all reasonable steps to mitigate the loss consequent on the breach, and debars him from claiming any part of the damage which is due to his neglect to take such steps."

In Secord v Global Securities, Justice Lynn Smith of the British Columbia Supreme Court summarized the term as follows:

"Mitigation of damages is the principle that a plaintiff may not recover losses that have been avoided through subsequent action or losses that could have been avoided by the plaintiff taking reasonable steps after the wrong."

In a personal injury case, Ms Justice Moen of the Court of Queen's Bench of Alberta in Dushynski v Rumsey wrote: 

"The general principle underlying mitigation is that the defendant should not be held liable for damages which the plaintiff could have reasonably avoided.

"The test for mitigation in a personal injury action is whether the plaintiff has acted reasonably in respect of his or her injuries, which includes submitting to reasonable medical treatment and following appropriate medical advice.

"The initial burden of proof requires the plaintiff to prove damages and quantum; but if the defendant alleges that the plaintiff failed to mitigate damages, the burden of proof then moves to the defendant."

For example, in a wrongful dismissal suit, the ex-employee who alleges that he or she was wrongfully fired should make some effort to find another job so as to minimize the economic damages upon themselves. In Whiting v First Data, Madam Justice Deborah Kloegman of the British Columbia Supreme Court found that there had been wrongful dismissal but assessed damages at $0.00 because Mr. Whiting failed to minimize his damages by refusing a similar position with TD Bank which had been offered to him:

"I find the plaintiff’s refusal to accept the TD Bank’s offer by way of mitigation to be unreasonable.  An employee’s duty to mitigate is not a duty owed to the employer, but a duty owed by the employee to conduct him or herself as a reasonable person."

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