K, think Ive got this BRITISH WESTINGHOUSE sorted: Q: Is gain created by taking steps to mitigate loss to be taken into account when calculating damages for BoK? A: Yes, provided the mitigation was reasonable steps which would be taken in the ordinary course of business, were arising out of the consequences of the breach, and were not res inter alios acta, as party suffering loss has a duty to mitigate the loss. My 5 principles from Westinghouse: 1. Robinson v Harman principle: He who has proved a breach of a bargain is to be placed as far as possible in as good a situation as if the contract had been performed. 2. There is a duty on the plaintiff to take all reasonable steps to mitigate the loss consequent on the breach, and he cannot claim damage which is due to his neglect to take such steps. 3. Principle 2 does not impose on P an obligation to take any step with a reasonable and prudent man would not ordinarily take in the course of his business. 4. Diminution of loss caused by taking these reasonable steps can/should be taken into account when assessing damages. 5. The subsequent transaction must be one arising out of the consequences of the breach (and in the ordinary course of business) and must not be res inter alios acta. :)
Posted on: Mon, 21 Oct 2013 23:37:05 +0000
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