Damages in Contract
59 Bruce J did not deal with this part of the case. After nearly two years it may have been overlooked. Apparently the parties did not draw attention to this oversight after 6 December 1996. At that time there was some confusion in the law and a proper submission would have required detailed references to authority and careful presentation. There is no sign that this was done.
60 Oxley's case is that Brambles, having unilaterally in the course of carrying out the contract decided to re-load the goods from two trucks onto one, must be taken to have agreed to do so on condition that the goods would be loaded and secured with reasonable care and skill so that they could be unloaded in a safe and proper manner at the Oxley depot, without presenting a risk of injury to employees of Oxley who were to assist in their unloading. The correctness of this proposition can hardly be gainsaid. The term can be regarded as a particular incident of a contract for the carriage of goods, otherwise silent on the subject, where for any reason of necessity or otherwise the carrier off-loads and re-loads goods during the course of carriage; compare Alcatel Australia Limited v Scarcella (1998) 44 NSWLR 349 at 363-4 and the cases there referred to.
61 Further, there could, it seems to me, be little doubt that if Oxley suffered damage as a result of the breach of this contract, the measure of damages would be the damages and costs Oxley was required to pay to the plaintiff and the costs Oxley incurred in defending the proceedings; Florida Hotels Pty Limited v Mayo (1965) 113 CLR 588 at 591, 598-9. It mattered not that Oxley was a co-tortfeasor with Brambles or that each was entitled to recover contribution from the other in respect of the damage suffered as a result of the other's tort.
62 In Astley v Austrust Limited the High Court considered the application of the Wrongs Act 1936 (South Australia) to an action for breach of contract. Section 27A (3) of that Act provided that where any person suffered damage as the result partly of his own fault and partly of the fault of any other person or persons, a claim in respect of that damage should not be defeated by reason of the fault of the person suffering the damage, but the damages recoverable in respect thereof should be reduced to such extent as the court thought just and equitable having regard to the claimant's share in the responsibility for the damage. "Fault" was defined in the section to mean negligence, breach of statutory duty or other act or omission which gave rise to a liability in tort or would have, apart from the Act, given rise to the defence of contributory negligence. Compare Pt III of the Law Reform (Miscellaneous Provisions) Act 1965, the equivalent legislation in New South Wales.
63 In a joint judgment the majority of the Court pointed out (73 ALJR at 412 and 415) that s27A (3) was concerned with claims in tort (para 41) and unconcerned with contractual claims (para 49). At 423 (para 89) their Honours said:
"a construction applying the apportionment legislation to contract cases is contrary to the text, history and purpose of the legislation. That means in this case that, although the learned trial judge was correct in finding that Austrust was guilty of contributory negligence, that finding could only apply to the assessment of damages in the tort claim. It had no application to Austrust's claim for breach of contract."
64 The present dispute does not involve defences based on contributory negligence but proceedings for contribution pursuant to s5 (1) and (2) of the Law Reform (Miscellaneous Provisions) Act 1946 which, so far as relevant, provides:
"(1) Where damage is suffered by any person as a result of a tort …..
(c) Any tort-feasor liable in respect of that damage may recover contribution from any other tort-feasor, who is, or would if sued have been, liable in respect of the same damage, whether as joint tort-feasor or otherwise….
(2) In any proceedings for contribution under this section the amount of the contribution recoverable from any person shall be such as may be found by the court to be just and equitable having regard to the extent of that person's responsibility for the damage; ……"
65 The majority decision in Astley v Austrust turned in part, at least, upon the conclusion that contributory negligence historically was a defence to a claim in tort but not to a claim in contract, and that decisions applying the apportionment legislation to contract claims adopted a strained interpretation of that legislation. However, under the heading "Policy considerations" their Honours said at 73 ALJR 422-3:
"84. It seems likely that those judges who have held that apportionment legislation applies to contract claims have regarded the contrary view as either anomalous or unfair or both; Doiron v Caisse Populaire D'Inkerman Ltee (1985)17 DLR (4th) 660 at 679. But when the nature of an action for breach of a contractual term to take reasonable care and the nature of an action in tort for breach of a general law duty of care are examined, it is by no means evident that there is anything anomalous or unfair in a plaintiff who sues in contract being outside the scope of the apportionment legislation. Tort obligations are imposed on the parties; contractual obligations are voluntarily assumed. In Simonius Vischer [1979] 2 NSWLR 322 at 349 Samuels JA noted that 'the first count founds upon a duty imposed by the relationship in which the parties stood, and the second upon a duty imposed by their agreement'. In Henderson [1995] 2 AC 145 at 194, Lord Goff of Chieveley emphasised the will of the parties as the factor which supported different results in contract and tort".
'The result may be untidy; but, given that the tortious duty is imposed by the general law, and the contractual duty is attributable to the will of the parties, I do not find it objectionable that the claimant may be entitled to take advantage of the remedy which is most advantageous to him.'
85. In contract, the plaintiff gives consideration, often very substantial consideration, for the defendant's promise to take reasonable care. The terms of the contract allocate responsibility for the risks of the parties' enterprise including the risk that the damage suffered by one party may arise partly from the failure of that party to take reasonable care for the safety of that person's property or person. Ordinarily, that risk is borne by the party whose breach of contract is causally connected to the damage. Rarely do contracts apportion responsibility for damage on the basis of the respective fault of the parties. Commercial people in particular prefer the certainty of fixed rules to the vagueness of concepts such as 'just and equitable'. That is why it is commonplace for contracts to contain provisions regulating liability for breach of a duty to take reasonable care, whether by excluding liability altogether or limiting it in some other way.
86. Absent some contractual stipulation to the contrary, there is no reason of justice or sound legal policy which should prevent the plaintiff in a case such as the present recovering for all the damage that is causally connected to the defendant's breach even if the plaintiff's conduct has contributed to the damage which he or she has suffered. By its own voluntary act, the defendant has accepted an obligation to take reasonable care and, subject to remoteness rules, to pay damages for any loss or damage flowing from a breach of that obligation. If the defendant wishes to reduce its liability in a situation where the plaintiff's own conduct contributes to the damage suffered, it is open to the defendant to make a bargain with the plaintiff to achieve that end. Of course, the result of such a bargain may be that the defendant will have to take a reduced consideration for its promise to take reasonable care. But the bargain will be the product of the parties' voluntary agreement to subject themselves to their respective obligations.
87. In an action in tort, however, the duty of the defendant to take reasonable care and the obligation of the plaintiff to take reasonable care for his or her own safety or interests are imposed on the parties by law. Absent a contractual stipulation varying the rights of the parties, it is the general law that defines their rights and liabilities. It is one thing to apportion the liability for damage between a person who has been able to obtain the gratuitous services of a defendant where the negligence of each has contributed to the plaintiff's loss. It is another matter altogether to reduce the damages otherwise payable to a plaintiff who may have paid a very large sum to the defendant for a promise of reasonable care merely because the plaintiff's own conduct has also contributed to the suffering of the relevant damage."
66 The application of s5 (1) of the 1946 Act is conditioned upon damage being suffered by a person as a result of a tort, and enables a tortfeasor, in this case Brambles, to recover contribution in respect of that damage from any other tortfeasor liable in respect of the same damage whether as a joint tortfeasor or otherwise (Oxley).
67 While the legislative scheme the High Court considered in Astley v Austrust was different in text, history and purpose, the reasoning confirms the distinction between obligations in tort and obligations in contract and the preservation of the right of a party, which suffered damage as a result of a tort, to pursue its remedies for any breach of a contract between it and the tortfeasor. Brambles' obligation to Oxley flowed from a promise voluntarily made for good consideration. In the absence of some contractual stipulation to the contrary, there is no reason of justice or sound legal policy which should prevent Oxley recovering for all the damage that is causally connected to Brambles' breach of contract even though Oxley's conduct contributed to the damage which it suffered. By its own voluntary act, Brambles accepted an obligation to load and secure the goods with reasonable care and skill so that they could be unloaded in a safe and proper manner at the Oxley depot, without presenting a risk of injury to Oxley's employees there to assist in the unloading, and to pay damages for any loss or damage flowing from a breach of that obligation. (Compare Astley v Austrust 73 ALJR at 423 para 86).
68 Accordingly s5 (1) of the 1946 Act does not affect Oxley's right to recover damages for breach of contract. The amount of the damages would be measured by the damages and the costs Oxley was ordered to pay to the plaintiff and its own costs of the proceedings brought by the plaintiff against it, less any amount paid by Brambles on account of those damages and costs.
69 Brambles' claim in contract is not so clear. It was obliged to carry the goods to the Oxley depot and there deliver them on its truck. Oxley had the obligation of unloading. No doubt it was contractually obliged to do so so as not to damage Brambles' property or injure Brambles' employee or contractor. But the damages for breach of the contract which Brambles now claims to recover, being the amount of its liability to the plaintiff, were, in my opinion, too remote. I say this for the following reasons. The degree of probability that Oxley's breach of the contract would cause Brambles to suffer loss as the result of a claim against it by an employee of Oxley for injuries suffered was such as to make the loss wholly unpredictable; see generally Greig & Davis, The Law of Contract, at 1376. In my opinion, damages for the loss which Oxley suffered as a result of the injury to its employee and its liability as employer to that employee could fairly and reasonably be considered to arise according to the usual course of things from Brambles' breach of its contractual obligation to load and secure the goods with reasonable care and skill. However, I do not think that the possibility of Brambles' liability to Oxley's employee flowing from the consequence of Oxley's failure to unload the goods with reasonable care and skill could fairly and reasonably be considered to arise according to the usual course of things; compare Florida Hotels v Mayo at 598. Nor do I think such damages could reasonably be supposed to have been in the contemplation of both parties, at the time they made the contract, as not unlikely to occur; compare Hadley v Baxendale (1854) 9 Ex 341 at 355; 156 ER 145 at 151; Koufos v C Czarnikow Limited [1969] 1 AC 350 at 388; Alexander v Cambridge Credit Corporation (1987) 9 NSWLR 310 at 363 and following per McHugh JA.
70 In Wenham v Ella (1972) 127 CLR 454 at 466-7 Walsh J said:
"Lord Wright [in Monarch Steamship Co Limited v Karlshamns Oljefabriker (A/B) [1949] AC 196] went on to say that remoteness 'is in truth a question of fact' [1949] AC at 223 and he cited a passage from the speech of Lord Haldane in an earlier case, to the effect that the apparent discrepancies found in the statements of general principles governing damages are due mainly to the varying nature of the particular questions which have arisen in different cases and to the need to mould the expression of the general principles, in applying them to the circumstances of particular cases. Lord du Parcq expressed agreement with what Lord Wright had said and added [1949] AC at 232:
'Circumstances are so infinitely various that, however carefully general rules are framed, they must be construed with some liberality, and not too rigidly applied. It was necessary to lay down principles lest juries should be persuaded to do injustice by imposing an undue, or perhaps an inadequate, liability on a defendant. The court must be careful, however, to see that the principles laid down are never so narrowly interpreted as to prevent a jury, or judge of fact, from doing justice between the parties. So to use them would be to misuse them.' "
71 In my opinion, justice between the parties requires that the loss suffered by Brambles in consequence of Oxley's breach of contract be treated as too remote. Accordingly, the claim by Brambles against Oxley in contract must fail.