A CLAIMANT NOT CLAIMING A CONTRIBUTION FROM THEIR PARTNER FOR HOUSING COSTS HAS NOT UNREASONABLY FAILED TO MITIGATE THEIR LOSS

October 7, 2022 · by · in Damages, Personal Injury

An interesting point as to damages (and also as to evidence and pleadings) arose in the judgment in  Riley v Salford Royal NHS Foundation Trust [2022] EWHC 2417 (KB).  The claimant required accommodation as a result of his injuries. The defendant argued that, in not seeking a contribution from his partner, the claimant had not mitigated his loss.  This point had not been pleaded, nor point to the claimant.  The judge rejected the argument.

“In these circumstances a failure to demand rent or a capital contribution is not an unreasonable failure to mitigate the loss. In any event the point was never put to the Claimant in cross-examination, which it should have been, if it was to be seriously pursued.”

THE CASE”

The claimant had been injured as a result of clinical negligence.  He claimed the cost of accommodation he had had to purchase. His partner lived at that accommodation with him.   During final submissions the defendant argued that the claimant had failed to mitigate his loss by not claiming a contribution towards the costs from his partner.

THE JUDGMENT ON THIS ISSUE

The judge did not accept the defendant’s argument.
118. It is agreed that the purchase of 11 Bridgefield Drive for £527,700 reasonably meets the Claimant’s long-term accommodation needs. It is further agreed that absent the amputation the Claimant and his partner would have purchased a house costing £240,000. In the Defendant’s final written submissions it was contended that the Claimant’s partner would not have been in a position to contribute to the ‘but for’ property, but this contention was abandoned when it came to the final oral submissions. However, the Defendant does argue that the Claimant, in not obtaining a contribution of £120,000 from his partner towards the cost of the bungalow, is guilty of a failure to mitigate his loss. The Defendant seeks to draw a distinction between the present case and cases where parents are caring for a child with severe cognitive difficulties. In WHITEN v. ST. GEORGE’S HEALTHCARE NHS TRUST 2011 EWHC 2066 (QB) it was argued that the Claimant should give credit for the cost of the home the family would have bought if the Claimant had been uninjured. Alternatively, that the Claimant should charge his parents rent for the benefit of living in the Claimant’s home. Mrs. Justice Swift rejected these arguments. The defendant was seeking to characterise the claimant’s failure to demand rent from his parents as a failure to mitigate his loss but this was rejected by the judge.
  1. No authority has been cited where a court has found it to be a failure to mitigate where an injured claimant reasonably requires adapted accommodation but has not sought a contribution from parents or a partner. In SWIFT v. CARPENTER 2020 EWCA Civ 1295 the Court of Appeal reconsidered the ROBERTS v . JOHNSON approach to calculating a claimant’s loss when injury reasonably requires the purchase of a more expensive property. Extensive expert evidence was received on the merits of alternative methods of calculating the loss. It was not suggested that a claimant would fail to mitigate his or her loss if they did not seek a contribution from parents or a partner. In the present case Jasmine has accepted the Claimant’s disability which will undoubtedly impose extra burdens on her. Further, it is unlikely that the couple will be in a position to move home in the future. The adaptation costs would be too great. In these circumstances a failure to demand rent or a capital contribution is not an unreasonable failure to mitigate the loss. In any event the point was never put to the Claimant in cross-examination, which it should have been, if it was to be seriously pursued.