Dr Andy Summers latest book Mitigation in the Law of Damages (OUP, 2024) was recently cited in the case of URS Corporation Ltd v BDW Trading Ltd heard in the UK Supreme Court:
76. Although the test is often said to be whether the claimant has acted reasonably, “reasonable” is such a protean term that this statement lacks any explanatory power. In his recently published study of Mitigation in the Law of Damages (2024), p 104, Andy Summers prefers to speak of the “normal response” to breach and goes on to give an illuminating analysis of the relevant legal and descriptive norms.
189. The court will have regard to the practical realities and consider whether the action taken was one which BDW would reasonably be expected to take. In addressing that question, the court will need to consider the extent of the risk of harm to which BDW would have been exposed if it had not remedied the defects. To avoid circularity of reasoning, the possibility that BDW could recover the cost of the work from URS must of course be ignored: see Summers, Mitigation in the Law of Damages (2024), p 111.