[35] Secondly, Westfield v Adams does not represent an absolute bar to reducing severance payments because of a failure of an applicant to mitigate his or her loss. Simply that, in the ordinary course, such a reduction would not be usually considered appropriate given the rationale for redundancy payments."
39 The final Full Bench authority is English v Aradlay Insurance Brokers Pty Ltd [2005] NSWIRComm 253. In dealing with the interrelationship between s 106(6) and the assessment of appropriate compensation under s 106(5), the Full Bench said (at paragraph [35]):
"[35] It is plain that the assessment of appropriate compensation under s 106(5), and also under s 106(6), involves an act of judgment on the part of the trial judge where the general law principles as to mitigation of damages are relevant but not decisive as to what award is made. In any event, the authorities as to mitigation make clear that while the duty to act reasonably to mitigate damage does not generally require an employee to take employment of a different or inferior kind, that part of the rules of mitigation known as the rule as to avoided loss, or mitigation in fact , means that where an applicant actually avoids loss by obtaining other employment (or earnings), the earnings will reduce the damages or compensation even though the non-acceptance of the other employment would not have constituted a failure to mitigate: relevant authorities include Collier v Sunday Referee Publishing Company Ltd [1940] 2 KB 647 at 653, Hill v C. A. Parsons & Co. Ltd [1972] Ch 305 at 314 and Yetton v Eastwoods Froy Ltd [1967] 1 W.L.R. 104 at 120 which are usefully discussed in Macken et al, Law of Employment, Fifth edition, 2002, at 312 - 313, Freedland, The Contract of Employment , 1976, at 261ff, Freedland, The Personal Employment Contract , 2003, at 362ff and Treitel, The Law of Contract , Eleventh edition, 2003, at p 980".