Astley v Austrust Ltd [1999] HCA 6

High Court of Australia Gleeson CJ McHugh, Gummow, Hayne and Callinan JJ Astley v Austrust Ltd [1999] HCA 6

ORDER Appeal dismissed with costs

Cur adv vult

The following written judgments were delivered:—

4 March 1999 Gleeson CJ, McHugh, Gummow and Hayne JJ.

1. Two important questions arise for determination in this appeal. The first is whether a plaintiff can be guilty of contributory negligence where the defendant has contractually agreed to protect the plaintiff from the very loss or damage which the plaintiff has suffered as the result of the defendant's breach of duty. The second is whether an award of damages for breach of contract may be reduced under apportionment of liability legislation, such as s 27A of the Wrongs Act 1936 (SA), because of contributory negligence on the part of the plaintiff where the defendant is liable concurrently in tort and contract for breach of a duty of care.

2. The appeal is brought against an order of the Full Court of the Supreme Court of South Australia. That order set aside the finding of a trial judge in the Supreme Court who had held that the respondent had been guilty of contributory negligence in failing to protect its property and that the damages it was entitled to in actions for breach of contract and negligence should be reduced by 50 per cent. In our opinion, the Full Court erred in finding that the respondent was not guilty of contributory negligence. However, the respondent sued in contract as well as in tort. It was entitled to recover for the whole of the damage that it suffered because damages awarded pursuant to a claim in contract cannot be reduced by reason of conduct that constitutes contributory negligence for the purposes of the Wrongs Act. The history, text and purpose of the Wrongs Act make it clear that that Act was not intended to apply to claims for breach of contract.