The laws of the unreasonable victim: Care, mitigation, and strategic deferral

In the domain of negligence – tort law’s dominant liability regime – victim behaviour is the subject of two central doctrines: contributory negligence and mitigation of damages, regulating pre-harm and post-harm behaviour, respectively. This article demonstrates that, contrary to prevalent claims about the identical function of the two doctrines, each contends with a different problem. At the pre-harm phase, contributory negligence counters the victim’s incentives to save cost by underinvesting in care. Conversely, in the post-harm phase, mitigation of damages counters the victim’s inclination to inflate liability by strategically deferring mitigation. This observation carries several implications: it explains why the unification of the two doctrines – now endorsed by the Restatement and the Principles of European Tort Law – should be rejected; it offers guidance on when each doctrine should apply; and it explains the law’s distinct approach to mitigation when performed by third parties.