LEGAL PRINCIPLE: CIVIL PROCEDURE – Remedies – Special Damages – Mitigation of Damages – Duty of Plaintiff – Burden of Proof
PRINCIPLE STATEMENT
It is settled that a plaintiff is under duty to mitigate their damages and any neglect by them in this respect is a bar to a claim; the question what is reasonable for a plaintiff to do in mitigation of their damages is however a question of fact, and not of law, in the circumstances of each case and the burden is on the defendant to show that the plaintiff failed to mitigate their loss.
RATIO DECIDENDI (SOURCE)
"It is settled that a Plaintiff is under duty to mitigate his damages and any neglect by him in this respect is a bar to a claim. The question what is reasonable for a Plaintiff to do in mitigation of his damages is however a question of fact, and not of law, in the circumstances of each case and the burden is on the defendant to show that the Plaintiff failed to mitigate his loss."
EXPLANATION / SCOPE
This balances Principle 628 with burden allocation. Plaintiff’s duty: Mitigate damages—take reasonable steps to minimize loss. Consequence of neglect: Failure to mitigate bars recovery of avoidable losses—plaintiff can’t recover damages that could have been avoided. Reasonableness: What’s reasonable for plaintiff to do is: question of fact (not law), determined from circumstances of each case, and context-dependent. Burden of proof: Defendant bears burden of proving: plaintiff failed to mitigate, reasonable mitigation steps existed, and plaintiff neglected them. This serves: balancing mitigation duty with fairness, requiring defendants to prove failure (not assuming it), and recognizing context-specific reasonableness. Why burden on defendant: Plaintiff already suffered wrong—shouldn’t also bear burden of proving mitigation efforts. Defendant alleging failure to mitigate must: identify reasonable mitigation steps plaintiff could have taken, prove plaintiff didn’t take them, and show losses were avoidable. Factual assessment: Courts examine: what was reasonable in plaintiff’s circumstances? were mitigation steps practicable? did plaintiff act reasonably? No universal standard—depends on: plaintiff’s resources, available options, practical constraints, and specific circumstances. This prevents: automatic assumption of mitigation failure, penalizing plaintiffs without proof, and imposing unreasonable mitigation burdens. The principle maintains mitigation duty while protecting plaintiffs through: reasonableness standard and burden on defendant to prove failure.