“The Meeting Resolved to approve procurement of aircraft by way of short-term operating lease as a result of the delayed delivery of the three A330-300 aircraft and one [B777-300] aircraft due to the inability of the manufacturer to install economy class seats which reduced the number of usable aircraft, causing aircraft rotation problems and therefore, the Company was in need of short-term operating lease of the three aircraft to solve such problems …”
“(1) The first and most important rule is that the claimant must take all reasonable steps to mitigate the loss to him consequent upon the defendant’s wrong and cannot recover damages for any such loss which he could thus have avoided but has failed, through unreasonable action or inaction, to avoid. Put shortly, the claimant cannot recover for avoidable loss. (2) The second rule is the corollary of the first and is that, where the claimant does take reasonable steps to mitigate the loss to him consequent upon the defendant’s wrong, he can recover for loss incurred in so doing; this is so even though the resulting damage is in the event greater than it would have been had the mitigating steps not been taken. Put shortly, the claimant can recover for loss incurred in reasonable attempts to avoid loss. (3) The third rule is that, where the claimant does take steps to mitigate the loss to him consequent upon the defendant’s wrong and these steps are successful, the defendant is entitled to the benefit accruing from the claimant’s action and is liable only for the loss as lessened; this is so even though the claimant would not have been debarred under the first rule from recovering the whole loss, which would have accrued in the absence of his successful mitigating steps, by reason of these steps not being ones which were required of him under the first rule. ... Put shortly, the claimant cannot recover for avoided loss.”
“[the claimant] can recover no more than he would have suffered if he had acted reasonably, because any further damages do not reasonably follow from the defendant’s breach.”
“Mitigation is often said to comprise three rules, but it is better expressed using just one: damages are assessed as if the claimant acted reasonably, if in fact it did not act reasonably.”
“If there is more than one reasonable response open to the wronged party, the wrongdoer has no right to determine his choice. It is where, and only where, the wrongdoer can show affirmatively that the other party has acted unreasonably in relation to his duty to mitigate that the defence will succeed.”
“I think the principle which applies here is that which makes it right for the jury or the arbitrator to look at what actually happened, and to balance loss and gain. The transaction was not res inter alios acta, but one in which the person whose contract was broken took a reasonable and prudent course quite naturally arising out of the circumstances in which he was placed by the breach.”
“Apart from the breach of contract, the lapse of time had rendered the [British Westinghouse] machines obsolete, and men of business would be doing the only thing they could properly do in replacing them with new and up to date machines.”
“[London Underground] were doubtless not bound to purchase machines of a greater kilowatt power than those originally contracted for, but they in fact took the wise course in the circumstances of doing so, with pecuniary advantage to themselves.”
“provided the course taken to protect himself by the plaintiff in such an action was one which a reasonable and prudent person might in the ordinary conduct of business properly have taken, and in fact did take whether bound to or not, a jury or an arbitrator may properly look at the whole of the facts and ascertain the result in estimating the quantum of damage.”
“Here, if the profit was an element or consequence of the substitute charter (which itself arose naturally out of the situation in which the charterers were placed by the breach), it was appropriate to speak of the profit itself as arising out of, or as a consequence of, the breach. If on the other hand the profit was not an element or consequence of the substitute charter, then the profit did not arise out of or as a consequence of the breach. It was for the arbitrators to form a judgment one way or the other.”
“The causation question is not concluded by the tribunal’s finding that the sale was in reasonable mitigation of loss. The loss in question which was mitigated was the owners’ net loss of income from the charterparty. The sale of the vessel mitigated this loss because it reduced the continuing costs of operating or laying up the vessel. To the extent that the benefits flowing from the sale comprised such cost savings, there is no difficulty in treating the causal nexus between breach and benefit as established through the mitigating step of selling the vessel. But insofar as the sale gave rise to a capital benefit, it was not caused by the breach, but by the independent decision of the owners to realise the capital value of their asset. Although that was a benefit which flowed from the mitigating step of selling the vessel, it does not satisfy the principle that benefits are only to be taken into account to the extent that they are caused by the breach.”
“In summary, the use of the short-term leased aircraft would reduce the average age of the fleet, stabilise the aircraft availability, increase the product effectiveness, and create better aircraft rotation for appropriate production. Furthermore, it also reduced fuel consumption, CO 2 emissions, fuel costs and maintenance costs and enhanced in-flight products while reducing the cost of product improvement of the two B747-400 aircraft.”
“I think they should be allowed the cost of replacement. True it is that they got new for old; but I do not think the wrongdoer can diminish the claim on that account. If they had added extra accommodation or made extra improvements, they would have to give credit. But that is not this case.”
“It is for the defendant who seeks a deduction from expenditure in mitigation on the ground of betterment to make out his case for doing so. It is not enough that an element of betterment can be identified. It has to be shown that the claimant had a choice, and that he would have been able to mitigate his loss at less cost. ... [I]f the evidence shows that the claimant had a choice, and that the route to mitigation which he chose was more costly than an alternative that was open to him, then a case will have been made out for a deduction. But if it shows that the claimant had no other choice available to him, the betterment must be seen as incidental to the step which he was entitled to take in the mitigation of his loss and there will be no ground for it to be deducted.”
“If a man who has taken a third class ticket from London to the north by one of the great companies is by the negligence of that company damaged by their breach of contract to convey him, and he, to reduce the damages, goes to another of the great companies and takes a ticket by the next train on that line, and is thus enabled to reach his destination by the contract time, but cannot travel by that train unless he takes a first class ticket, his damages may well be the whole of the sum he has to pay for that ticket, although the result is that he has enjoyed a greater luxury of travel.”
“It is often very hard to learn what the value of the performance would have been; and it is a common expedient, and a just one, in such situations to put the peril of the answer upon that party who by his wrong has made the issue relevant to the rights of the other.”
“It is for the defendant to prove the value of the advancement. It is he who prays it in aid in mitigation of damage. He must prove, therefore, the value of it.”
“Depreciation of an asset begins when it is available for use, ie when it is in the location and condition necessary for it to be capable of operating in the manner intended by management.”