UK: Measure Of Damages In Negligence And The Duty To Mitigate

Last Updated: 25 April 2016
Article by Jane Howard

The Court of Appeal has provided a helpful reminder that the general rule regarding recovery of damages in claims for negligence should not be applied mechanistically. The assessment of damages at the date when the damage occurred is the starting point, there is no reason why subsequent events should not be considered.


In Bacciottini and another v Gotelee & Goldsmith (2016) the claimants issued a claim seeking damages for negligent advice given by the defendant firm of solicitors. The claimants had acquired a residential property in May 2007. The defendant had acted for the claimants in relation to the purchase and during that time had negligently failed to advise them that the property was subject to a planning restriction - restricting its residential use (the Restriction).

In 2008 the claimants discovered the Restriction. They received advice from new solicitors to apply to the District Council to have the Restriction lifted. This was done in September 2009, at a cost of £250. No objections to the claimants' application were raised and the application was approved in November 2009.

The claimants subsequently issued proceedings against the defendant, seeking damages in respect of their negligent advice. They said that had they received proper advice they would not have purchased the property or, alternatively, that they would not have purchased the property for any more than its value with the Restriction attached.

The defendant admitted it had been negligent, however, the Restriction could be, and in fact was, lifted at very little cost. There was no material effect on the value of the property, so the only loss the claimants had suffered was the cost of lifting the Restriction.

The trial judge accepted that the claimants had paid approximately £100,000 more than the property was actually worth with the Restriction attached. However, he also held that applying to lift the Restriction was a simple, obvious and cheap step to take. As a result he did not accept the claimants' argument that they would have purchased the property at a reduced price or that they would have withdrawn from the sale had they been told about the Restriction at the outset.

The court held that awarding the claimants damages as claimed "would overcompensate" them. The principles of mitigation needed to be applied. In summary, they had no other realistic option but to apply for the Restriction to be lifted. The application was made pursuant to their duty to mitigate, it was not independent of the defendant's negligence. The overpayment they had made was then eradicated as a result of the steps they had taken.

Damages in the sum of £250 were awarded - representing the cost of the application to remove the Restriction, nothing more.

The claimants appealed.

The appeal

The claimants argued that the trial judge should have awarded them the sum of £100,000 (with interest) representing the difference between the value of the property in May 2007 without the Restriction and the value of the property at that date with the Restriction.

They relied on the general principle established by earlier case law that "damages must be assessed at the date when the damage occurred, which is usually the same day as the cause of action arises". This was the difference in value of the property with and without the Restriction as at the date of purchase. They said their successful application to remove the Restriction was a collateral and independent decision, an act they had pursued for their own benefit which lacked sufficient causal connection with the original breach of duty by the defendant.

The claimants argued that had they been properly advised they could have purchased the property at a price reduced by negotiation and could then have applied to lift the Restriction as part of their development plans. The gain secured by the reduced purchase price would then have been theirs outright.

The defendants argued that as a result of the successful application to lift the Restriction the claimants had got what they should have got. To award damages for the diminution in value at the time of purchase would involve double payment and overcompensating them for a loss they had not suffered. The claimants were under a duty to mitigate by applying to lift the Restriction, and even if that duty had not arisen they had mitigated their losses and the consequences of their mitigation had to be considered.

The decision

The appeal was dismissed. The Court of Appeal held that historic case law has encapsulated the core principle in cases of this kind - the measure of damages is ordinarily "...that sum of money which will put the party who has been injured, or who has suffered, in the same position as he would have been if he had not sustained the wrong for which he is now getting his compensation or reparation".

Lord Justice Davis held that by applying to remove the Restriction the claimants had suffered no loss over and above the £250 fee they had paid. There was, therefore, nothing in respect of which they required compensation.

He held that there was no absolute principle in relation to capital loss cases that "damages must be assessed at the date when the damage occurred, which is usually the same day as the cause of action arises". The 'normal measure' is only to be applied if it produces a fair result - the assessment of damages is to be undertaken realistically and not mechanically. The 'normal measure' is a convenient starting point - but no less or no more.

There is no reason why events following the breach should not be considered. Issues such as mitigation and avoidance of loss will necessarily be geared to events occurring or steps taken after the date of breach and after the cause of action has accrued.

The claimants were under a duty to take steps to seek to remove the Restriction - to do so was not out of the 'ordinary course of things'. The procedure was "simple, obvious and cheap". In any event, even if they had not been under a duty the fact remains that they did mitigate their losses.

The application to lift the Restriction was not an independent development decision, pursued for the claimants' own benefit and taken at their risk. The original breach was the reason for the application - the application was a direct consequence of and was directly caused by the defendant's negligence.

The claimants were only entitled to recover the fee they had paid to apply to lift the Restriction: £250.


This is a welcome reminder that a party can only be compensated for the loss it suffers, which is not to be measured only at the date of the breach. A claimant is under a duty to take reasonable steps to seek to mitigate its losses and if the steps so taken substantially reduce or eradicate the loss suffered the claimant should not be able to recover more.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

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