Examining Mitigation in the Law of Damages and the Limits of the Compensatory Principle

Abstract In Causation in the Law, Hart and Honoré famously argued that the attribution of responsibility for outcomes within the law is broadly consistent with the ordinary person’s non-legal judgments about responsibility, whilst simultaneously drawing an important distinction between ‘causal’ and non-causal’ rules of responsibility attribution. In Mitigation in the Law of Damages, Andrew Summers argues that the theory of ‘common-sense causation’ Hart and Honoré advanced also persuasively explains the English law of mitigation. In addition to considering the continuing relevance of this analysis today, and noting the need for an improved understanding of legal responsibility’s non-causal limits, the present article critically evaluates Summers’s descriptive claims. It is argued that while Summers offers a generally compelling rationalisation of the avoidable loss rule, his analysis of the authorities concerned with the relevance of consequential benefits derived from the wrong when assessing damages following civil wrongdoing is substantively incomplete.