The demarcation line between contributory negligence and the avoidable loss rule

In both Australia and England, the contributory negligence doctrine and the avoidable loss rule may affect the recovery of damages for breach of contract or tort based on the idea that the plaintiff has contributed to some or all of the loss through unreasonable conduct. According to a widely held view, the doctrines’ fields of application are separated according to whether the plaintiff’s conduct occurred before the wrong (contributory negligence) or after the wrong (avoidable loss rule). Iain Field favours a distinction according to whether the plaintiff’s unreasonable conduct contributed to the damage (contributory negligence) or increased the indirect losses flowing from the damage (avoidable loss rule). This chapter rejects both views and argues that the scope of the avoidable loss rule ought to be confined to actions taken in response to a wrong, and the failure to take such an action. Other unreasonable conduct of a plaintiff after the wrong ought to be characterised as contributory negligence or a novus actus interveniens.