Mitigation of loss | OCR A-Level Law
For Specification H418
OCR A-Level Law | Free Revision Notes
Estimated study time: 35–45 minutes
This Mitigation of loss A-Level Law revision page explains how a successful tort claimant's conduct after harm has occurred can affect the damages they recover. OCR H418 requires the basic concept of mitigation, so the focus is on understanding that a claimant should take reasonable steps to prevent avoidable loss from increasing and on applying that principle to straightforward factual situations. This develops your understanding of compensation [Lesson 140. Compensatory damages] and prepares you for remedy selection [Lesson 143. Tort remedies problem solving].
Learning Objectives 🎯
By the end of this revision page, you should be able to:
Explain the basic concept of mitigation of loss.
Explain when mitigation becomes relevant in a tort claim.
Explain how a failure to mitigate affects the damages recoverable.
Identify losses which could reasonably have been avoided.
Distinguish mitigation from contributory negligence.
Apply mitigation accurately to straightforward factual situations.
Revision Notes 📚
Mitigation of loss A-Level Law revision overview
OCR places mitigation of loss within the remedies section of the law of tort alongside:
compensatory damages
injunctions.
The specification requires only the basic concept of mitigation, rather than an extensive body of detailed mitigation case law.
The essential principle is:
After suffering harm, a claimant should take reasonable steps to prevent their loss from increasing unnecessarily.
If the claimant fails to take reasonable steps and additional loss could have been avoided, the defendant will not normally be required to compensate the claimant for that avoidable additional loss.
Mitigation therefore affects the amount of damages recoverable.
Mitigation happens after the harm
This is the most important timing rule.
Mitigation becomes relevant after the harm has happened.
OCR's 2025 examiner report expressly identified this point because some candidates confused mitigation with contributory negligence.
A simple timeline is:
D commits the tort
↓
C suffers harm
↓
C must respond reasonably to the consequences
↓
Mitigation may affect later losses
This distinguishes mitigation from claimant behaviour which contributes to the original accident or injury.
Example
D negligently damages C's property. A temporary repair could reasonably prevent further weather damage, but C does nothing and the property suffers substantial additional damage.
The original property damage was caused by D.
However, the additional loss may raise mitigation because it occurs after the initial harm and could potentially have been reduced by reasonable action from C.
What does the claimant have to do?
The claimant is expected to take reasonable steps to reduce or prevent unnecessary additional loss.
This does not mean that the claimant must:
eliminate every possible consequence
guarantee that losses remain small
take unreasonable action.
The basic OCR-level question is:
Could C reasonably have reduced the later loss after the tort occurred?
If yes, and C fails to do so, that avoidable part of the loss may not be recoverable.
A simple mitigation formula
Original actionable harm
Unavoidable resulting loss
=
Potentially compensable
But:
Additional loss which C could reasonably have avoided
=
May be excluded from the damages recovered.
Mitigation does not erase the defendant's tort
Mitigation does not mean that D suddenly stops being liable for the original tort.
Suppose:
D negligently injures C. C later fails to take reasonable steps that would have prevented some additional financial loss.
D may still be liable for:
the original injury
pain and suffering
unavoidable financial losses
other recoverable consequences.
The mitigation issue concerns the additional avoidable loss.
This is therefore primarily a damages principle, not a way of pretending that the original tort never occurred.
The effect of mitigation on damages
A claimant cannot simply allow losses to increase unnecessarily and expect D to compensate every additional consequence.
Where mitigation applies:
damages may be limited so that C does not recover for loss which could reasonably have been avoided.
This fits the compensatory basis studied in compensatory damages [Lesson 140. Compensatory damages].
Compensatory damages aim to compensate for the claimant's recoverable loss.
They are not intended to provide compensation for additional losses which the claimant could reasonably have prevented after the tort.
Example: damaged property
A delivery vehicle negligently crashes into the wall of Priya's shop. The accident leaves part of the roof exposed. Priya could arrange a simple temporary covering while permanent repairs are organised, but she chooses to leave the roof completely open for several weeks. Heavy rain then causes extensive additional damage inside the shop.
Original harm
The damage caused directly by the collision remains attributable to the defendant.
Later loss
The extensive rain damage occurs after the initial tort.
Mitigation
If putting a temporary covering over the damaged area would have been a reasonable step, Priya's failure to take that step may amount to a failure to mitigate.
Effect
Priya may still recover compensation for the damage caused by the collision and other unavoidable loss.
However, she may have difficulty recovering the part of the later rain damage which could reasonably have been prevented.
Example: loss of earnings
Mitigation can also be relevant to financial losses following personal injury.
Suppose:
C is injured through D's negligence and can no longer perform their previous physically demanding job. C is nevertheless capable of carrying out suitable alternative work but unreasonably refuses to consider it for a lengthy period.
The claimant may have a claim for loss of earnings.
However, mitigation raises the question:
Could some of the continuing financial loss reasonably have been reduced?
If suitable work could reasonably have been undertaken, a claimant cannot necessarily allow an avoidable earnings loss to continue indefinitely and expect D to pay for all of it.
The focus remains on reasonable action after the injury.
Mitigation is not perfection
The claimant is expected to respond reasonably, not perfectly.
A person who has:
just suffered an injury
suffered property damage
experienced major disruption
is not required to find the mathematically cheapest possible response immediately.
The basic principle is reasonableness.
Example
C's shop window is smashed because of D's tort. C arranges a reasonable temporary repair while a replacement is ordered.
The fact that another possible repair might have cost slightly less does not automatically mean that C has failed to mitigate.
The issue is whether the action taken was a reasonable response to the loss.
📌 Exam technique: Avoid extreme statements such as "C must always choose the cheapest option". OCR requires the basic concept of mitigation, which centres on reasonable steps to prevent avoidable additional loss.
Successful mitigation
Mitigation is not only about what happens when C behaves unreasonably.
A claimant may take sensible action which successfully reduces the loss.
For example:
D damages C's business premises. C promptly arranges a temporary repair so that the business can reopen quickly.
C has acted to prevent the financial consequences from becoming greater than necessary.
A strong scenario answer can therefore conclude:
C appears to have mitigated the loss appropriately.
There is then no basis for reducing compensation merely because C took reasonable steps which involved some expense.
Failure to mitigate
A failure to mitigate is most clearly raised where:
harm has already occurred
C knows or can identify that further loss may arise
a reasonable step is available
C fails to take it
the loss then becomes greater than it otherwise would have been.
Application sequence
Ask:
What was the original harm?
Then:
What happened afterwards?
Then:
Could C reasonably have reduced the later loss?
Finally:
Which part of the claimed loss resulted from C's failure to act reasonably?
That final question matters because mitigation affects the avoidable additional loss, not necessarily the whole damages award.
Mitigation versus contributory negligence
This distinction is essential.
OCR's 2025 examiner report specifically found confusion between the two concepts. Some candidates incorrectly treated a claimant's failure to wear protective boots before the accident as a failure to mitigate. OCR explained that mitigation is relevant only after the harm has happened.
The correct concept in that situation was contributory negligence.
Contributory negligence
Ask:
Did C's conduct contribute to the original injuries?
It concerns conduct before or during the harmful event.
It is studied fully in claimant contribution to harm [Lesson 138. Contributory negligence].
Mitigation
Ask:
After the harm occurred, did C take reasonable steps to prevent further avoidable loss?
It concerns the claimant's response after the harmful event.
Comparison table
Contributory negligence | Mitigation of loss |
Concerns C's contribution to the original injuries. | Concerns C's response after harm has occurred. |
Relevant before or during the harmful event. | Relevant after the harmful event. |
Partial defence under the Law Reform (Contributory Negligence) Act 1945. | Principle limiting recovery of avoidable loss. |
Can reduce damages because C contributed to the injury. | Can restrict damages for later loss C could reasonably have avoided. |
Example: failing to use safety equipment which contributes to the injury. | Example: failing to take reasonable steps after the injury to prevent financial loss increasing. |
The quickest exam distinction
Ask:
Had the harm already happened?
No
→ mitigation is probably not the issue.
Yes
→ mitigation may become relevant to subsequent loss.
The OCR 2025 warning
The 2025 examination provides a particularly useful warning.
The claimant had not been wearing suitable footwear when the workplace accident occurred.
Some candidates argued:
The claimant failed to mitigate his loss by not wearing the boots.
OCR specifically identified this as incorrect because the footwear issue occurred before the harm.
The correct analysis was:
The claimant may have contributed to his own injuries.
That is contributory negligence.
Remember
Before injury
→ contributory negligence may apply.
After injury
→ mitigation may apply.
This is one of the simplest ways to avoid losing marks.
Mitigation and damages
Mitigation should also be distinguished from the classification of damages.
In compensatory damages [Lesson 140. Compensatory damages], you learned about:
general damages
special damages
pecuniary loss
non-pecuniary loss.
Mitigation does not create another category of damages.
Instead, it asks whether a particular claimed loss should be recoverable in full when C could reasonably have prevented some of it.
Example
C claims £20,000 in lost earnings.
The loss may fall within the appropriate damages category.
The separate mitigation question is:
Could C reasonably have reduced part of this £20,000 loss after being injured?
If yes, the recoverable amount may be affected.
So the correct order is:
identify the claimed loss
classify it where necessary
consider whether mitigation affects how much can be recovered.
Mitigation and causation are different
Mitigation should also remain separate from the question of whether D caused the original damage.
Causation
Asks:
Did D's tort cause the actionable harm?
Mitigation
Asks:
Once that harm had occurred, did C respond reasonably so that avoidable additional loss was not allowed to accumulate?
A claimant's failure to mitigate does not necessarily mean:
D did not cause the original injury.
Instead, it may mean:
D should not have to compensate C for the later avoidable part of the loss.
Applying mitigation to personal injury scenarios
Suppose:
D negligently injures Amira. Amira cannot return to her existing job for several months. After recovering sufficiently, she is offered suitable alternative work which she is capable of doing, but she refuses it without any stated reason and continues claiming her entire lost income.
A good answer would proceed as follows.
Original loss
Amira's inability to work immediately after the accident follows from her injury.
That initial loss of earnings may be recoverable.
Later circumstances
She later becomes capable of suitable alternative work.
Reasonable steps
Accepting suitable work may represent a reasonable way of reducing continued earnings loss.
Failure to mitigate
If Amira unreasonably refuses the work, the defendant can argue that some later earnings loss could have been avoided.
Effect
The original negligence claim does not disappear.
However, Amira may not recover the full amount of earnings she could reasonably have avoided losing.
Applying mitigation to property scenarios
Suppose:
D negligently damages the front door of C's business. C knows that the building is no longer secure. A temporary security measure could easily be arranged, but C leaves the premises open for several weeks and further property is damaged.
The important sequence is:
Initial damage
→ caused by D.
Opportunity for reasonable action
→ temporary security was available.
Failure to act
→ C leaves the property unsecured.
Additional loss
→ further damage occurs.
The mitigation principle may therefore limit recovery for the avoidable additional loss.
Applying mitigation where the claimant acts reasonably
Consider:
D damages Morgan's shop. Morgan immediately arranges a reasonable temporary repair and reopens the shop as soon as possible. Some trading loss nevertheless occurs while the repair is completed.
There is no obvious failure to mitigate.
Morgan has actively taken reasonable steps to reduce the loss.
The fact that some loss remains does not mean mitigation has failed.
Conclusion
Morgan may still claim appropriate compensation for loss which remains despite reasonable mitigation.
Mitigation does not require impossible action
A scenario may state that there was nothing reasonable C could have done to prevent a particular later loss.
In that situation, mitigation should not be artificially forced into the answer.
For example:
C suffers an injury which completely prevents work for six months. No suitable alternative work is possible during that period.
There is no factual basis for saying:
"C should have worked anyway."
The loss is unavoidable on the facts given.
Mitigation concerns loss which can reasonably be reduced.
Applying mitigation only when the facts raise it
OCR repeatedly advises students to select only law relevant to the facts of the question.
The 2022 examiner report warns that candidates frequently wrote about contributory negligence and mitigation in negligence questions where neither was required, wasting examination time.
The 2023 report gives the same broader warning about including mitigation where the question had ruled out remedies or where it was otherwise irrelevant.
Look for mitigation triggers
Useful factual clues include:
"after the accident..."
"following the injury..."
"was advised to..."
"could have prevented further loss by..."
"refused suitable..."
"did nothing and the damage became worse..."
"took immediate steps to reduce the loss..."
These facts point towards the claimant's post-harm conduct.
A complete mitigation checklist
When applying mitigation in a tort scenario:
Step 1: Identify the established harm
What harm did D's tort originally cause?
Step 2: Identify later loss
What additional financial or other compensable loss arose afterwards?
Step 3: Identify a possible mitigating step
Could C reasonably have done something to reduce that loss?
Step 4: Examine what C actually did
Did C:
take the reasonable step
refuse it
ignore the problem
allow avoidable loss to increase?
Step 5: Link the conduct to the additional loss
Which part of the claimed loss could have been avoided?
Step 6: Explain the effect
If C failed to mitigate:
damages may be limited in relation to the avoidable additional loss.
Step 7: Keep other principles separate
Ask whether the facts actually concern:
contributory negligence
classification of damages
mitigation.
Worked application 1: failure to protect damaged property
Ethan successfully establishes negligence against RoadHaul Ltd after one of its vehicles damages the roof of his shop. Ethan is told that rain is expected and that a temporary waterproof covering can be fitted immediately at modest cost. He refuses to arrange one. Several days later, rain enters the shop and causes substantial additional damage to the stock.
Initial tort
RoadHaul's negligence and liability have already been established.
Initial damage
The original roof damage is part of the loss caused by the defendant.
Post-harm conduct
After the accident, Ethan knows that:
the roof is exposed
rain is expected
a temporary covering is available.
Reasonable step
Fitting the temporary covering appears to be a reasonable step capable of limiting additional loss.
Failure to mitigate
Ethan refuses to take that step.
The later damage to the stock may therefore be regarded as loss which could reasonably have been reduced or avoided.
Effect on damages
RoadHaul remains liable for the original tort.
However, Ethan may be unable to recover the full amount of additional rain damage which resulted from his failure to mitigate.
Conclusion
The facts provide a strong mitigation argument because the relevant conduct takes place after the original harm and concerns preventable additional loss.
Worked application 2: successful mitigation
Sana's café is damaged through D's negligence. Sana immediately arranges a temporary repair so that the café can reopen after two days. She loses two days of income despite doing everything reasonably possible to reopen quickly.
Claimant's conduct
Sana responds promptly.
She takes reasonable action designed to reduce the financial loss.
Remaining loss
Some trading loss remains despite those efforts.
Conclusion
There is no clear failure to mitigate.
The two days of unavoidable trading loss may remain part of the damages claim, subject to the ordinary damages principles.
This illustrates that mitigation does not mean the claimant must somehow prevent all loss.
Worked application 3: mitigation or contributory negligence?
Leon is injured in a workplace accident. Before the accident, he ignored instructions to wear suitable protective footwear. After the injury, he later refuses suitable alternative work which he is capable of performing.
There are two separate legal issues.
Protective footwear
This conduct occurs before the harm and may contribute to Leon's injuries.
→ Consider contributory negligence.
Refusal of suitable work
This occurs after the harm and may increase Leon's continuing earnings loss.
→ Consider mitigation.
A strong answer does not merge the two.
This is exactly the distinction highlighted by OCR's 2025 examiner report.
Worked application 4: no mitigation issue
Tara is seriously injured by D's negligence. The injury makes her completely unable to work for one year. The facts state that no suitable alternative work is available and nothing Tara could reasonably do would enable her to return sooner.
There is no meaningful mitigation argument in relation to the earnings loss.
The loss is unavoidable on the facts.
Conclusion
Do not invent a failure to mitigate simply because Tara remains out of work.
A strong answer should recognise that the facts provide no reasonable step by which she could reduce the loss.
Mitigation within a complete remedies answer
A remedies question may require you to deal with several principles.
A clear structure is:
Stage 1: Identify damages
Using compensatory damages [Lesson 140. Compensatory damages], classify relevant losses as appropriate.
Stage 2: Consider mitigation
Ask whether any later loss could reasonably have been reduced.
Stage 3: Consider another remedy if relevant
The next lesson introduces injunctions as a tort remedy [Lesson 142. Injunctions].
Stage 4: Reach an overall remedies conclusion
Explain:
what compensation is potentially available
which losses may be affected by mitigation
whether another remedy is more appropriate where relevant.
These skills are brought together in tort remedies problem solving [Lesson 143. Tort remedies problem solving].
What OCR does not require here
The current H418 specification describes the requirement as the basic concept of mitigation.
For this lesson, concentrate on:
reasonable post-harm action
avoidable additional loss
the effect on damages
accurate factual application
distinction from contributory negligence.
There is no need to turn a mitigation answer into an extensive separate essay containing detailed rules beyond that specification requirement.
📌 Revision priority: If you can explain when mitigation applies, what C is expected to do, and how failure to mitigate affects recoverable damages, you have covered the core OCR requirement.
Key Words 🔑
Key word | Student-friendly definition | How it may be used in an exam |
Mitigation of loss | The principle that a claimant should take reasonable steps after harm has occurred to prevent avoidable loss from increasing. | Identify post-harm conduct that may affect the damages C can recover. |
Avoidable loss | Additional loss which reasonable action by the claimant could have prevented or reduced. | Explain which part of C's claimed damages may be limited. |
Reasonable steps | Sensible action which can reasonably be expected from C in response to the consequences of the tort. | Apply the available options in a scenario rather than expecting perfect behaviour. |
Compensatory damages | Financial compensation for recoverable harm and loss caused by a tort. | Explain how mitigation can limit part of the damages otherwise claimed. |
Contributory negligence | A partial defence arising where C contributes to their own injuries. | Distinguish conduct before or during the injury from mitigation after harm has occurred. |
Hints from the Examiner Reports 💡
Examiner hint: Get the timing right. OCR's 2025 examiner report specifically states that mitigation is relevant after the harm has happened. Candidates who treated unsuitable footwear worn before an accident as mitigation confused it with contributory negligence.
Examiner hint: Do not confuse mitigation with contributory negligence. Ask whether the claimant's conduct contributed to the original injury or instead increased a later loss after the injury had occurred.
Examiner hint: Only apply mitigation when the facts raise it. OCR reports repeatedly warn against including irrelevant law simply because it has been revised.
Examiner hint: Support factual advice with a legal principle. OCR's recent reports distinguish successful application, which links law to specific facts and reaches a conclusion, from purely common-sense narrative advice.
Examiner hint: If a question establishes liability or excludes remedies, follow the instruction. Do not spend time applying mitigation where the question does not require remedies.
Examiner hint: Keep your answer proportionate to the specification. OCR requires the basic concept of mitigation, so precise explanation and accurate application are more useful than unrelated detail.
Common Mistakes ⚠️
Mistake: Applying mitigation to conduct before the accident
Why this is incorrect: Mitigation concerns the claimant's response after harm has occurred.
How to improve: Ask whether the relevant conduct occurred before, during or after the harmful event.
If it happened before or during the injury and contributed to that injury, consider contributory negligence [Lesson 138. Contributory negligence].
Mistake: Calling failure to mitigate contributory negligence
Why this is incorrect: The doctrines deal with different stages of events.
How to improve: Remember:
Contribution to original injury = contributory negligence
Failure to reduce later loss = mitigation
Mistake: Saying failure to mitigate removes all liability
Why this is incorrect: The defendant may remain liable for the original tort and unavoidable losses.
How to improve: Identify the particular additional loss which could reasonably have been avoided.
Mistake: Saying C must eliminate all loss
Why this is incorrect: Mitigation requires reasonable steps, not a perfect outcome.
How to improve: Explain whether C's response was reasonable in the circumstances.
Mistake: Expecting C to take an unreasonable step
Why this is incorrect: The basic concept is based on reasonable mitigation.
How to improve: Identify a realistic step which the facts show was available to the claimant.
Mistake: Assuming every continuing loss shows failure to mitigate
Why this is incorrect: Some consequences of a tort cannot reasonably be prevented.
How to improve: Ask whether the facts actually identify something reasonable C could have done differently.
Mistake: Treating mitigation as a new category of damages
Why this is incorrect: Mitigation affects how much of a claimed loss is recoverable. It does not replace the classifications of general and special damages.
How to improve: Classify the losses using compensation principles [Lesson 140. Compensatory damages], then consider mitigation separately.
Mistake: Applying mitigation whenever a claimant behaves badly
Why this is incorrect: The behaviour must be relevant to preventing or reducing loss after the tort.
How to improve: Create a timeline before deciding which legal principle applies.
Exam-Style Questions ✍️
Question 1
What is meant by mitigation of loss in tort law? [2 marks]
Question 2
Explain how a failure to mitigate may affect the damages recovered by a claimant. [4 marks]
Question 3
Explain the difference between mitigation of loss and contributory negligence. [4 marks]
Question 4
D negligently damages Maya's shop roof. Maya is told that a temporary waterproof covering can be fitted before heavy rain arrives, but she refuses to arrange one. Rain later causes additional damage.
Explain how mitigation may affect Maya's claim for damages. [6 marks]
Question 5
Theo is injured through D's negligence and cannot perform his previous job. Several months later, when he is capable of working again, Theo is offered suitable alternative employment but refuses it without explanation. His earnings loss therefore continues.
Explain how the principle of mitigation may apply. [6 marks]
Question 6
Sofia's business premises are damaged through D's negligence. Sofia immediately arranges reasonable temporary repairs and reopens the premises as quickly as possible. Some financial loss nevertheless occurs.
Advise whether there is a clear failure to mitigate. [6 marks]
Question 7
Assume D is liable in negligence for injuries suffered by Marcus.
Before the accident, Marcus failed to use suitable safety equipment and this contributed to his injuries. After the accident, Marcus later refuses a reasonable opportunity to reduce some of his continuing financial loss.
Explain the two different legal principles raised by Marcus's conduct. [8 marks]
Question 8
Roadfast Ltd negligently damages Olivia's small shop. Assume liability has been established.
The collision breaks a section of the roof and destroys stock worth £4,000. Olivia experiences an unavoidable three-day closure while emergency work is carried out.
After those three days, contractors tell Olivia that a temporary covering can be installed immediately and would protect the shop until the permanent roof repair is completed. Olivia decides not to install it. Two weeks later, rain enters through the damaged roof and destroys an additional £12,000 of stock.
During those two weeks Olivia also keeps the shop completely closed, although the contractors tell her that the undamaged ground floor can safely reopen.
Advise how mitigation of loss may affect the damages Olivia can recover. [10 marks]
Indicative answers and mark scheme
Question 1
Award up to 2 marks for explaining that:
mitigation concerns the claimant taking reasonable steps after harm has occurred
to prevent or reduce avoidable additional loss.
Question 2
Award up to 4 marks for explaining that:
D may remain liable for the original tort
C is expected to take reasonable steps to limit later loss
loss which could reasonably have been avoided may not be recoverable in full
unavoidable losses remain subject to the ordinary rules on damages.
Question 3
Award up to 4 marks for explaining that:
Contributory negligence
concerns C contributing to their original injuries
operates in relation to conduct before or during the harmful event.
Mitigation
concerns C's conduct after harm has occurred
affects later loss which could reasonably have been reduced.
Credit explanation that contributory negligence is a partial defence, whereas mitigation is a principle affecting recoverable damages.
Question 4
A strong response should explain that:
D's original liability for damaging the roof is not removed
mitigation becomes relevant after that original harm occurs
Maya is told that a temporary waterproof covering is available
the facts indicate that the covering could prevent the later rain damage
refusing a reasonable protective step may therefore amount to a failure to mitigate
damages may be limited in relation to the additional rain damage which could reasonably have been avoided.
Conclusion: Maya may still recover for the original roof damage and unavoidable loss, but may not recover the full additional loss caused by leaving the roof unprotected.
Question 5
A strong answer should explain that:
Theo's original injury and unavoidable initial earnings loss remain consequences of D's tort
mitigation becomes relevant when Theo is later capable of working
suitable alternative employment is available
he refuses the opportunity without any stated reason
accepting suitable work may have been a reasonable way to reduce his continuing earnings loss
the defendant may therefore argue that damages should not include the part of the later earnings loss which Theo could reasonably have avoided.
Question 6
A strong answer should explain that:
Sofia acts promptly after the damage occurs
she arranges reasonable temporary repairs
she reopens as quickly as reasonably possible
mitigation does not require the claimant to prevent every consequence of the tort
some unavoidable loss may still be recoverable.
Conclusion: There is no clear failure to mitigate on the facts. Sofia appears to have taken reasonable steps to reduce the loss.
Question 7
A strong response should separate the two stages.
Conduct before the accident
Marcus fails to use suitable safety equipment.
The facts state that this contributes to his injuries.
This raises contributory negligence, studied in [Lesson 138. Contributory negligence].
It is a partial defence which may reduce damages to reflect Marcus's contribution to his own injuries.
Conduct after the accident
Marcus later refuses a reasonable opportunity to reduce continuing financial loss.
This raises mitigation of loss because the relevant conduct occurs after the harm has happened.
If some later financial loss could reasonably have been avoided, Marcus may not recover that avoidable amount in full.
Conclusion
The two principles should not be merged:
pre- or during-harm contribution → contributory negligence
post-harm avoidable loss → mitigation.
OCR's 2025 examiner report specifically identified confusion between these concepts as an examination weakness.
Question 8
A strong response should identify the different losses separately.
Original roof damage
Roadfast's liability has already been established.
The original damage to the roof therefore remains part of the tortious loss.
Mitigation does not remove Roadfast's responsibility for the initial harm.
First £4,000 of stock
The first £4,000 of stock is destroyed in the original collision.
This loss occurs before Olivia has any opportunity to mitigate.
There is therefore no basis in the facts for excluding it through mitigation.
Three-day closure
The question states that the initial three-day closure is unavoidable while emergency work takes place.
Mitigation only concerns loss which could reasonably have been reduced.
There is therefore no clear failure to mitigate in relation to those three days.
Temporary covering
After the emergency period, Olivia is told that:
a temporary covering can be installed immediately
it would protect the shop
the permanent repair can then follow.
This gives Olivia an identifiable opportunity to take reasonable action after the original harm.
She decides not to install the covering.
Additional £12,000 stock damage
Two weeks later, rain enters and destroys another £12,000 of stock.
The facts directly connect the later damage with Olivia's failure to install the temporary covering.
Roadfast can therefore argue that this additional loss could reasonably have been avoided through mitigation.
Olivia may consequently have difficulty recovering the full £12,000.
Continuing closure
The contractors also tell Olivia that the ground floor can safely reopen.
If she nevertheless keeps the whole business closed, any additional trading loss associated with that decision may also raise mitigation.
The question would be whether reopening the safe part of the shop was a reasonable step which could have reduced the continuing financial loss.
Overall conclusion
Roadfast remains liable for the original tort.
Olivia should be able to claim for losses which arose before she had a reasonable opportunity to act, including:
the original roof damage
the initial £4,000 stock loss
the unavoidable three-day closure, subject to the ordinary damages rules.
However, her failure to install the temporary covering provides a strong mitigation argument in relation to the later £12,000 stock loss. Her decision to keep the whole shop closed despite being told that part could safely reopen may similarly restrict recovery of avoidable trading losses.
The key distinction is that mitigation does not remove Roadfast's liability. It limits recovery for additional loss which Olivia could reasonably have prevented after the original harm occurred.
The next lesson considers the alternative non-financial remedy of court orders controlling conduct [Lesson 142. Injunctions].
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