A trial judge cannot find a failure to mitigate loss where the defendant has not pleaded failure to mitigate, has not cross-examined the plaintiff on the issue, and has not made submissions on it at trial. An increase in the discount for vicissitudes from 30% to 45% for a short remaining period of future economic loss close to the judgment date may constitute appellable error as being beyond the sound exercise of discretion.
The full text is available to signed-in members.