We have a bevy of bush lawyers on here don't we. The fact that damages are paid out in respect of a loss which gives rise to, for example, a statutory claim and a claim in negligence, is not a defence to liability under either claim. They may reduce the amount of damages recoverable in the second action, but that is neither a defence nor mitigation.
bloody hell...if by statutory claim you mean workers comp you're wrong: the concept which determines liability is injury.
There is no legal thing constituting a "claim" in negligence: you have a cause of action in negligence.
If damages are paid out that is a complete defence to both a subsequent claim for compo and any action in negligence: in the former case because the recovery of damages terminates the right to compo by force of the statute creating the right to compo and in the latter because the cause of action merges in the judgment and becomes res judicata.
Where compo has been paid that is a defence to an action for damages to the extent of the payments made.
The duty to mitigate expresses the desire of the common law that any damages that a defendant may ultimately be liable for should only be those damages that may be seen as reasonable: a plaintiff who fails to take a reasonable step that would have the effect of reducing the damages payable will not recover the difference as damages. The assertion of a failure to mitigate is a matter for specific pleading in a defence.
I'm not going to correct any more posts in this thread but my silence should not be taken as acceptance ot the accuracy of anything said after this.
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