Ian Gilfillan: Australian Democrats in the SA Parliament

	Extract from Hansard Legislative Council 3 July 2001

Ian Gilfillan Australian Democrats Member of the Legislative Council		Parliament Index 2001 Autumn Sitting Index Browse by Subject Search all Democrats material About the SA Parliament Hansard on line
		Attorney General News

The Hon. IAN GILFILLAN: I rise to speak on behalf of the Democrats supporting this bill. I note from the outset the Attorney-General has asked that this bill be dealt with in the current sitting and I indicate that we will support the passage of this bill through this week, preferably today. The bill arises as a result of a 1999 High Court decision in relation to the Wrongs Act 1936. The decision was made in the case of Astley v. Austrust and relates to the effect of contributory negligence in cases of breach of contract. Section 27A of the Wrongs Act 1936, which deals with the apportionment of liability in cases of contributory negligence, maintains that people who claim damages for a breach of duty of care can recover only a percentage of damages if it is found that they have contributed by their own negligence to their loss.

Although it is clear that this applies under common law of tort, it has been a matter of debate whether it applies to contract law. The case of Astley v. Austrust has removed this doubt with the High Court ruling that the Wrongs Act 1936 did not apply to claims for breach of contract. I note that the Attorney-General stated:

The overwhelming response to the decision in Astley v. Austrust from legal practitioners, academics and the insurance industry was that the statute should be changed.

The Democrats agree with moves to amend this legislation. The solution that has been suggested by the Attorney-General is to remove the existing provisions from the Wrongs Act 1936 and to enact new legislation, namely, this bill which is currently before us. The bill will apply to liability and damages that arise under the law of torts, damages for breach of a contractual duty of care, as well as damages that arise under statute. It will allow the courts to reduce a plaintiff's damages in cases where their contributory negligence is involved in a case of breach of contractual duty of care. The bill addresses the concerns raised about the implications of the High Court ruling in the case of Astley v. Austrust and also updates sections 24 to 26 of the Wrongs Act 1936.

In closing, I note that today I have in fact received a number of amendments to the bill-which is pretty hasty time in which to consider them. They were filed by the Attorney-General. On a quick assessment they seem to be minor amendments to the bill and will obviously be dealt with in the committee stage, so unless there is some hidden matter of concern in those amendments we will support the passage of the bill at the second reading, through the committee stage and to its finality.