Harper v Ashtons Circus Pty Ltd [1972] 2 NSWLR 395

Facts: The plaintiff purchased tickets for himself and his family for a performance of the defendant’s circus. During the performance, and while the plaintiff was changing seats with his wife, he fell backwards from the top tier of seats and suffered personal injury. The plaintiff sued the defendant for breach of contract, the relevant breach being the defendant’s failure to provide a safety rail at the back of the top tier of seats.

Held: Although the NSW Court of Appeal found there had been no contributory negligence on the part of the plaintiff, the court held that, as a matter of principle, contributory negligence is no defence to an action founded on breach of contract and hence no ground for reduction of the plaintiff’s damages under apportionment legislation.