Checkmate

112. Test of reasonableness. The reasonableness of the plaintiff’s response to the defendant’s wrong in mitigation is a question of fact to be determined in the light of all the circumstances of the case.¹ In commercial cases the “ordinary course of business” sets the standard of reasonableness, requiring the plaintiff to do no more than reasonable and prudent people would do ordinarily in the course of their business.² In general, the standard of reasonableness is not set at a high level since the defendant is a wrongdoer.³ The plaintiff’s response to the defendant’s wrong is judged, not in hindsight, but according to the circumstances as they appeared at the time.⁴ When there are various alternatives open to a plaintiff, a reasonable choice of one alternative over another will not be held against a plaintiff if it is subsequently found that one of the other alternatives might have involved some greater mitigation of damages.⁵

Plaintiffs are entitled to consider their own interests before determining how the defendant’s damages should be minimised,⁶ or, where relevant, how third party interests should be accommodated.⁷ They are under no obligation to injure themselves, nor their character, business, or property, to reduce the damages payable by the defendant.⁸ A plaintiff is not required to pursue uncertain claims or litigation against third parties,⁹ even where the defendant is prepared to indemnify the plaintiff.¹⁰

On the other hand, plaintiffs will generally be required to allow the defendant a reasonable time to repair the wrong,¹¹ to accept an offer of help from the defendant,¹² to avail themselves of compensation from sources other than the defendant,¹³ to negotiate a further contract with the defendant,¹⁴ and to accept an offer of alternative performance from the defendant.¹⁵ But the plaintiff will not be required to do these things if they would prejudice his or her rights¹⁶ or would otherwise be intolerable to the plaintiff because, for example, it would involve a lowering of status¹⁷ or the maintenance of a personal relationship that the plaintiff finds unacceptable.¹⁸

Well....hopefully. XD

I might actually take this down after a week...I'm actually worried this might incur liability o_o.