PI Brief Update

Pleading and proving mitigation of loss: Mathieu v Hinds & Anor [2022] EWHC 924 (QB) - Rochelle Powell, Temple Garden Chambers

25/04/22. The judgment of Mrs Justice Hill in this case deals with a number of interesting issues. This article focuses on pleading and proving mitigation of loss.

The claimant, Manuel Mathieu, was an up and coming artist, studying for a Masters’ degree in Fine Art at Goldsmiths College. On 28 November 2015 he was struck by a stolen moped, driven by Tony Hinds and insured by Aviva plc. Liability was admitted. The claimant sustained a serious brain injury in the incident. However, he made a good recovery and went on to become an established and successful artist. The claimant’s case was that the headaches, fatigue and cognitive issues from which he continued to suffer as a consequence of his brain injury, had hampered his productivity. As a result, he was not able to produce and sell as much art as he would otherwise have been able to. The second defendant accepted that the claimant suffered a serious injury for which he is entitled to some damages, but contended that the claimant had failed to mitigate his loss by not pursuing (a) treatment aimed at preventing headaches; and (b) further fatigue management sessions.

The Law

Mrs Justice Hill provided a helpful review of the well-established general legal principles relating to the mitigation of loss at [87]-[92]. In summary:

(i) A claimant must take all reasonable steps to mitigate loss consequent upon the defendant’s breach and will be debarred from claiming “any part of the damage which is due to his neglect to take such steps” (British Westinghouse Electric and Manufacturing Co Ltd v Underground Electric Railways Co of London Ltd (No. 2) [1912] AC 673 at 689, per Viscount Haldane LC).

(ii) In mitigating their loss, a claimant is only required to...

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