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CHAPTER 19 The Member’s Duty to Sue and Labour

P. &. I Clubs Law and Practice

Page 319 CHAPTER 19 The Member’s Duty to Sue and Labour A. GENERALLY 19.1 A principle applicable to many areas of English law is that a person who seeks compensation or an indemnity in respect of a loss that he has sustained is required to take steps to mitigate that loss. The seller of goods who meets with a defaulting purchaser must go out on to the market, if there is one, and get the best price from an alternative purchaser. This general principle of mitigation applicable to victims who have suffered at the hands of tortfeasors and contractual defaulters also applies to assureds under marine and some other policies who claim indemnities from insurers. This requirement of “self-help” might be based upon fairness to the indemnifier so as to “lighten, as far as possible, the burden which is to fall on the underwriters” 1 or it might derive from the more complex issues of causation involving considerations as to whether the proximate cause of a loss or the extent of a loss was caused either by the initial harm or by the victim’s own failings such as to raise questions of proximate cause and novus actus. Most recent discussions on the principle of mitigation of loss in the context of insurance have tended to centre more on the ground of proximate cause.

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