In Henderson v Merrett Syndicates Ltd [1995] 2 AC 145 at 193-194, Lord Goff of Chieveley expressed the following view:
… My own belief is that, in the present context, the common law is not antipathetic to concurrent liability, and that there is no sound basis for a rule which automatically restricts the claimant to either a tortious or a contractual remedy. 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, subject only to ascertaining whether the tortious duty is so inconsistent with the applicable contract that, in accordance with ordinary principle, the parties must be taken to have agreed that the tortious remedy is to be limited or excluded.
The above passage was cited with approval in Astley v Austrust Ltd (1999) 197 CLR 1 at [47] by Gleeson CJ, McHugh, Gummow and Hayne JJ.
To what extent do contractual, tortious, restitutionary and equitable remedies remain distinct based upon their historical and theoretical foundations? Should litigants be able to pick and choose their cause of action based upon the most advantageous remedy available? Should there be a law of remedies fashioned upon the nature of the harm suffered rather than the cause of action asserted and to what extent does legislation dealing with civil liability, whether generally or in specific contexts such as motor and workplace accidents, achieve this objective?