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. Conclusion The result of this decision is that contributory negligence cannot be raised as a defence to a claim in contract until the apportionment legislation in each State is amended. One of the most obvious implications of the decision for service providers, professionals and their insurers is quantification of damages. Solicitors acting for plaintiffs will have to advise which remedy to pursue to obtain the best result. Careful consideration will have to be given to issues where contract and tort differ such as time limits pursuant to Limitation Acts and rules of remoteness of damage.
Defendants can still rely on causation defences to a claim in contract.
The judgment places much emphasis on the ability of parties to a contract to agree their own terms. Service providers will now have to consider whether to include clauses in their contracts, similar to the apportionment legislation, which provide for apportionment of damages according to the respective fault of the parties. Such clauses may not be commercially viable. Also, if services are being provided to consumers to whom the Contracts Review Act 1980 applies then such a clause may be found to be unconscionable, harsh or oppressive. The long-serving advocate, Frank McAlary QC, who took our brief on the appeal to the Full Court and the subsequent appeal before the High Court, was particularly well qualified to assist the Court on the issue of whether a service provider might have the comfort of a contributory negligence defence to contract against his client.