Mitigation and Refusal of Medical Treatment: Reasonableness and Onus of Proof

DOIhttp://doi.org/10.1111/j.1468-2230.1983.tb02549.x
Published date01 November 1983
Date01 November 1983
NOTES
OF
CASES
MITIGATIQN
AND
REFUSAL
OF
MEDICAL TREATMENT:
R.EASONABLENESS
AND
ONUS
OF
PROOF
THE advice of the Judicial Committee of the Privy Council in
Selvanuyagam
v.
University
of
the West Indies
seems to call for a
somewhat mixed welcome. Whilst
it
may have opened the way to a
benign revolution in one aspect of mitigation in personal injury cases
the benefits of this must be set against some perplexing propositions on
burden of proof.
The facts were that the plaintiff, a Professor of Civil Engineering,
sustained serious injuries when he fell in an excavation in a darkened
passage. The University admitted negligence but on assessment of
damages contended that the plaintiff had acted unreasonably in failing
to mitigate because he had refused surgery for his injuries.
The test for the reasonableness
of
such a refusal was discussed in
Workmen’s Cornpensation cases prior to
1948
and since then
in
a
number
of
English and Australian tort cases.3
In
Scotland Lord
Macdonald in
Donnelly
v.
Baird
framed an objective test, asking what
a man of ordinary manly character, in
a
case where no question of
compensation due by another existed would undergo for his own good,”
and this was approved by Viscount Simon in
Steele
v.
George.6
A
strict objective test was also applied by the Court of Appeal in
Murcrofi
v.
Scruttons
where the plaintiff docker’s refusal of electro-convulsive
therapy was held to be unreasonable even though the refusal resulted
from a depressive state which was itself the product of a pre-existing
constitutional weakness activated by the defendant employer’s negli-
gen~e.~
In
Morgan
v.
Wallis
Browne
J.
also said he had to apply an
objective test, asking
Would
a
reasonable man, in all the circum-
stances, receiving the advice which the plaintiff did receive, have
~ ~ ~
[I9831
1
All
E.IR.
824, [1983J
1
W.L.R.
584.
English
nnd
Empire
Digest,
Vol.
34,
pp.
563-567.
As
to
whether failure to mitigate
should deprive a phaintiff of all damages (following the Workmen’s Compensation rule)
or
merely that percentage of damages corresponding to the medical assessment of the
chances
of
successful treatment see
Ippoliro
v.
Janiak
(1982) 126
D.L.R.
(3d)
623.
See an article by the present writer
Refusal of Medical T:eatment
(1983) 3
L.S.
50.
Though it was repeatedly stressed in the Workmen’s Compensation cases that reasonable-
ness was a question of fact (see
e.g.
Steele
v.
George
[I9421
A.C.
497, 502, 503, 506
and
508)
some of the guidelines and criteria
look
like propositions
of
law and have been
so
treated by later courts. In
Morgan
v.
Wallis [I9741
1
Lloyd’s Rep.
165, 167-168
it was said
that the same principles are applicable to reasonableness of refusal at common law and
Workmen’s Compensation cases have been considered and relied on in Australian cases.
Seeposr, notes
24,
I5
and
14
for
Fazlic
v.
Milingimbi
(1982) 38
A.L.R.
424;
Karabotsos
v.
Plasfex
[1981]
V.R.
675;
Glavonjic
v.
Fosfer
(19791
V.R.
536.
1908
S.C.
436, 439-440.
11942)
A.C.
497,499.
[I9541
1
Lloyd’s Rep.
395.
See Denning L.J. at p.
401
for an explicit contrast between
objective and subjective appraisal.
Ibid.
at
397
and
401.
I19741
1
Lloyd’s Rep.
165.
754

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