Factual and Procedural Background
Plaintiff, employed by Company A as a shipping manager, injured her back when she tripped while visiting one of the company’s vessels on 27 March 1994. A writ claiming damages for personal injuries was issued on 14 March 1996 and served on Company A outside the jurisdiction. Company A entered an appearance but filed no defence, whereupon default judgment was entered with damages to be assessed.
Directions for the assessment were given on 20 September 1998. The matter came before Judge Mitchell (Acting) on 9 December 1998. Evidence consisted of Plaintiff’s affidavit exhibiting multiple medical reports; Company A called no evidence. After cross-examination of Plaintiff, Company A argued for a reduction of damages on the basis that Plaintiff had unreasonably refused recommended spinal surgery. In a written judgment dated 18 December 1998, Judge Mitchell accepted that contention and awarded EC$80,000.
Plaintiff appealed. On 7 February 2000 the Court of Appeal (Judge Singh JA, Judge Redhead JA, Judge Matthew JA) unanimously reversed the finding on mitigation and increased the total award to EC$348,000. Company A then appealed to the Privy Council. At the conclusion of the hearing the Board announced that the appeal would be dismissed with costs and now provides its reasons.
Legal Issues Presented
- Whether Plaintiff’s damages should be reduced because she allegedly failed to mitigate her loss by declining spinal surgery.
- Whether the Court of Appeal erred in selecting a higher retirement age (and thus a higher multiplier) when calculating future loss of earnings.
Arguments of the Parties
Company A’s Arguments
- Plaintiff acted unreasonably in refusing spinal surgery that was likely to succeed, thereby failing to mitigate her loss.
- The Court of Appeal used an unjustifiably high retirement age, inflating the damages award.
Plaintiff’s Arguments
- The decision not to undergo surgery was reasonable given the absence of guarantees, acknowledged risks, and lack of definitive medical advice quantifying probable benefits.
- The Court of Appeal correctly assessed her likely working life to age 65 in light of her individual circumstances.
Table of Precedents Cited
| Precedent |
Rule or Principle Cited For |
Application by the Court |
| Selvanayagam v University of the West Indies [1983] 1 WLR 585 |
Placed the burden on a plaintiff to prove that refusal of medical treatment was reasonable. |
Lower courts followed it, but the Board acknowledged strong academic criticism and treated it as an unreliable statement of current law; outcome remained the same even without relying on its burden-of-proof rule. |
| Steele v Robert George & Co (1937) Ltd [1942] AC 497 |
Earlier House of Lords authority on mitigation and medical treatment. |
Cited by commentators to criticise Selvanayagam; used to demonstrate that the orthodox view places the evidential burden on the defendant. |
| Richardson v Redpath, Brown & Co Ltd [1944] AC 62 |
Further House of Lords authority supporting the orthodox approach to mitigation. |
Referenced for the same purpose as above. |
| Sotiros Shipping Inc v Sameiet Solholt [1983] 1 Lloyd’s Rep 605 |
Statement by Sir John Donaldson MR that a plaintiff has no “duty” to mitigate; defendant is liable only for loss causally connected to the breach. |
Quoted with approval in academic commentary that the Board found persuasive. |
Court's Reasoning and Analysis
The Board examined the mitigation issue solely on the evidence adduced by Plaintiff, as Company A called none. The trial judge had characterised the medical evidence as showing a surgery “likely to succeed,” yet none of the doctors quantified prospects of success or addressed potential adverse outcomes. Doctor A (orthopaedic surgeon) and Doctor B (neurosurgeon) both described surgery as an option that could not guarantee relief and carried inherent risks; Doctor C (rheumatologist) echoed that assessment. Crucially, there was no evidence that Plaintiff’s decision-making was irrational or that the risks had been fully explained to her.
The Board noted substantial academic and judicial criticism of Selvanayagam, observing that orthodox authority places the evidential burden on the defendant, not the plaintiff. Nevertheless, it held that the appeal must fail even if the heavier burden were placed on Plaintiff because, on the limited material, a finding of unreasonable refusal was unsustainable. The Court of Appeal therefore reached the correct conclusion.
Turning to the retirement-age multiplier, the Board found no error of law in the Court of Appeal’s use of age 65, characterising it as a permissible evaluative judgment not warranting interference, especially as the overall award was not excessive.
Finally, the Board emphasised proper procedural practice: if a defendant intends to allege failure to mitigate, it must plead the point or otherwise give clear advance notice so the plaintiff can respond.
Holding and Implications
APPEAL DISMISSED WITH COSTS.
The judgment of the Court of Appeal stands, leaving Plaintiff’s award at EC$348,000. While not formally overruling Selvanayagam, the Board signalled that its approach to burden of proof on mitigation is untenable, thereby reinforcing the orthodox position that defendants must prove a plaintiff acted unreasonably. The decision also underscores the need for defendants to plead mitigation defences expressly and in sufficient time, although it does not establish a new binding precedent beyond those procedural reminders.