We often see it when something goes wrong. A person suffers damage through someone else’s conduct and, because the other person is clearly at fault, decides not to do anything about the damage. Sometimes it is because he wants to preserve the ‘evidence’. Sometimes it is simply the feeling that “it was not my fault, so why should I be the one to fix it?”
A damaged vehicle is left untouched even when it could reasonably be repaired. Goods are allowed to deteriorate because the person responsible for the problem has not yet paid. A business suffers a disruption but takes no reasonable steps to contain the consequences because, in the owner’s view, the other party should bear the blame. When the matter eventually reaches court, the losses may have become considerably larger than they were at the beginning.
But does being the innocent party mean that you can simply watch the loss grow and later ask the person who caused the original wrong to pay for all of it? The law’s answer is not quite that simple. There is a principle, most commonly encountered in claims for damages, that requires a person who has suffered a wrong to take reasonable steps to reduce the consequences of that wrong. It is the duty to mitigate.
The Duty to Mitigate
The law expects a man to act prudently when he finds himself faced with a loss. It will not allow a person who has suffered a wrong to deliberately sit back, watch the consequences grow and later return to demand compensation for everything that followed, including what he could reasonably have prevented.
That will be against justice, fairness and everything those principles are meant to protect. A person who suffers loss through another’s wrongful conduct is entitled to seek compensation. But the law is concerned with the loss that the wrong has actually caused. It is not a licence to allow a manageable problem to become an unmanageable one and then place the whole burden on the person who caused the original wrong.
The principle is perhaps best understood by looking at what happened in Nutakor & Anor v Adzrah. The case concerned a piece of land which the defendant had purported to ‘sell’ to the plaintiff. The conveyance contained the usual covenant of title. The difficulty was that the land was family land and the defendant had no authority to convey it.
The plaintiff had prepared to build on the land when members of the family warned him that the defendant had no right to give him the land. He was told to keep away but he did not. He went ahead and put up a building on the property. The family subsequently succeeded in establishing its title and recovered possession of the land.
The plaintiff then sought to recover from the defendant, among other things, the value of the building he had erected. There was no real difficulty in appreciating that the plaintiff had suffered a wrong. The defendant had purported to give him a title which he did not have the capacity to give. But the question before the court was not simply whether the defendant was at fault. It was also a question of the extent of the loss for which the defendant could properly be made responsible.
The Supreme Court was not prepared to make the defendant answer for the building which the plaintiff put up after he had already been warned about the defect in the title. The proper measure of the loss was tied to the value of the land when the purchaser became aware that he had acquired no title because of the vendor’s incapacity.
The law could not shut its eyes to the fact that there came a point when he knew his vendors had no “land to sell.” From that point, the decision to continue building was his own. There is a reason for this. The law of damages is compensatory. It seeks to place the injured party, so far as money can do it, in the position he would have been in had the wrong not occurred. It is not intended to give a person an opportunity to enlarge his loss and then present the enlargement as part of his claim.
The Scope of the Duty
Three points are worth keeping in mind. First, the law requires reasonable steps, not every conceivable step. The law does not ask an injured person to become a hero for the benefit of the wrongdoer. It does not require him to take unreasonable risks with his money or reputation. It does not ordinarily require him to pursue an unnecessarily difficult legal battle against a third party simply to minimise the damages claimed from the original wrongdoer.
The circumstances matter. What is reasonable for a large commercial enterprise may not be reasonable for an ordinary individual. What is reasonable in one market may be impractical in another. The law is therefore not looking for perfection. It is looking for prudence.
Secondly, where reasonable mitigation actually prevents the loss, the Plaintiff cannot recover what he no longer lost. If a seller whose goods have been rejected finds another buyer and obtains the same price, there may be no loss on that transaction requiring compensation. The original breach remains a breach, but damages are not awarded merely to mark the claimant’s displeasure. They are intended to compensate for actual loss.
Thirdly, the law recognises that mitigation itself may cost money. A person should not be placed in the strange position of being told to act reasonably to reduce his loss and then being denied recovery of the reasonable expense of doing so. Where the step was reasonably taken and the expense was reasonably incurred, it may form part of the damages.
These points bring the principle back to where it started. The law expects prudence, but not self-sacrifice. It expects a claimant to reduce avoidable loss, but it does not make him responsible for curing the wrong itself.
A Statutory Blessing: The Sale of Goods Act
The same thinking appears quite clearly in Ghana’s Sale of Goods Act, 1962, Act 137.
Sections 48 and 54 provide for the assessment of damages where a buyer wrongfully refuses to accept goods or a seller fails to deliver them. Where there is an available market, the Act uses the market or current price at the relevant time in determining the prima facie measure of the loss.
There is practical wisdom in that approach. A market gives an innocent party an opportunity to respond to the breach. If goods can reasonably be bought elsewhere, the buyer cannot ordinarily allow the loss to run indefinitely and then treat every later increase in price as though it were necessarily caused by the original breach.
Similarly, a seller whose goods have been rejected cannot simply allow perishable goods to waste where a reasonable resale was available and then expect the buyer to bear the entire consequence.
The law is therefore not blind to what happens after a wrong has been committed. It follows the loss and asks how much of it can fairly be attributed to the wrongdoer.
Conclusion
There is a larger lesson here for anyone who finds himself on the receiving end of another person’s wrong. Do not mistake the right to compensation for a licence to retaliate through the damages you claim.
The law will not shut its doors to you because you have suffered a wrong. If another person’s conduct has caused you a genuine loss, the law gives you a means of seeking redress. But it will also not allow you to take the absolute power of revenge into your own hands and then use the law as a tool for achieving it.
You cannot deliberately allow the damage to grow simply because you want the person who caused it to suffer more. A genuine claim for compensation cannot be turned into an opportunity for punishment. The law disapproves of that, and rightly so.
