This concept may be portrayed as follows a man is

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Unformatted text preview: a party, and seek to avoid placing sanction for the plaintiffs whole loss upon a defendant where circumstances have arisen which are not within the defendant's influence and, therefore, an injustice may arise in holding the defendant entirely responsible. This concept may be portrayed as follows. A man is injured by the negligence of a driver; he is taken to the hospital by ambulance and on the way to the hospital the ambulance is struck by a concrete slab negligently being moved by crane 207 a bove the street, killing the injured man. Is the original defendant driver responsible for the circumstances which in fact killed the injured man? The court would assess the secondary event as a new act which intervened into the circumstances of the original action. It is questionable, however, that the original tortfeasor would be excused completely. Contemporary courts would have no trouble in readily recognizing that concurrent and successive causes can exist. If the negligence or breach of duty of one person is the cause of injury to another, the wrongdoer cannot in all circumstances escape liability by proving that, though he was to blame, yet for the negligence of a third person the injured m a n would not have suffered the damage of which he complains. There is abundant authority for the proposition that the mere fact that a subsequent act of negligence has been the immediate cause of disaster does not exonerate the original offender. The original tortfeasor in the scenario above would be able to escape additional damages clearly shown to have been caused by the negligence of the crane operator. The original victim, or in this case the victim's family, would be able to recover as far as money can compensate, for the whole loss incurred from their departed loved one. The main argument would likely focus on the case between the negligent driver and the negligent crane operator regarding how much each would be required to pay. Intervening events are not restricted to tort cases of this nature. Courts require both victims of tortious conduct and victims of breach of contract to avoid any losses which are possible to avoid by taking reasonable action. If a victim fails to take reasonable and prudent action to stop continuing losses after the initial damage has been inflicted, it i seen as a novus actus. The court views those avoidable losses as having been caused by the plaintiffs failure to take action, and not the defendant's culpable act. In these 37 Chapman v Hearse (1961) 106 C.L.R. 112. Lord du Parcq in Grant v Sun Shipping Co. Ltd. [1948] A .C. 549 at 563; also cited and quoted by Mason C.J. in March v Stramare (E. & M. H.) Pty. Ltd. [1990-91] 171 C.L.R. 5 06 at 513. 38 208 -ty circumstances the defendant is excused from incurring any liability in contract breach, although s/he may be directly responsible for those losses if, upon examination, it can b shown that the plaintiff could have avoided those ongoing losses. In contract this is known as the plaintiffs duty to mitigate his/her loss. Mitigation of Damages Within the general heading of an intervening act, there is a 'duty' imposed upon the victim of breach of contract or tort which, in effect, places a burden upon the victim to attempt to avoid any losses which can be avoided in the circumstances. An injured party must attempt, for example, to avoid losses incurred in a rising market by replacing goods where delivery is refused by a stubborn seller in breach of contract. A seller must try t sell with expedition in a falling market goods which have been wrongfully refused in breach of contract by a purchaser. A purchaser of a defective product may be precluded from recovery of damages past the point where the court determines that it would have been reasonable for the defective product to be replaced instead of continually repaired. In short, the right to damages for breach of contract is not absolute, and is qualified by rule "which imposes on the plaintiff the duty of taking all reasonable steps to mitigate 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."40 This burden of mitigation is seen as a species of loss which was not in fact caused by th actions of a defendant, and an injured party who could have otherwise avoided loss is not entitled to just sit and do nothing and let losses accumulate, charging them to the 39 Burns v M.A.N. Automotive (Australia) Pty. Ltd. (1986) 161 C.L.R. 653. 209 defendant. T o rule otherwise is to sanction the actions of a lazy plaintiff w h o lets losses increase without any action being taken and then attributes the losses to the defendant. The courts have developed the attitude that any losses which a reasonable plaintiff could have avoided were caused not by the actions of the defendant, but by the apathy or lethargy of the plaintiff. This has direct impact on the recovery of avoidable opportunity costs. If the court ascertains t...
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This note was uploaded on 09/03/2012 for the course LAW 1501 taught by Professor Garva during the Three '12 term at University of Adelaide.

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