BRAND and ANOR v BARDON [1997] NSWCA 48

BRAND and ANOR v BARDON [1997] NSWCA 48

Majority held that the Brands, trading as Thalgo Cosmetic(s), held themselves out as contracting party and were parties to contract; are estopped from denying liability; and breached both implied warranties and duty of care as the injury to respondent (a sensitive user) was not too remote and was foreseeable under Shirt principles.

Parties
Appellants/defendants: Paul Brand and Louise Brand; Respondent/plaintiff: Gretchen Bardon
Jurisdiction
Australia
Judgment Date
18 July 1997
Procedural Posture
Appeal / Court of Appeal Judgment
Outcome
Appeal dismissed (by majority).
Legal Topics
Negligence—duty of Care, Sale of Goods—implied Warranties, Estoppel, Foreseeability and Sensitive Plaintiffs, Breach of Merchantable Quality, Breach of Description Requirements
Product Liability Contract Law Tort Law Negligence—duty of Care Sale of Goods—implied Warranties Estoppel Foreseeability and Sensitive Plaintiffs Breach of Merchantable Quality +1 more

Case Brief

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Parties

Paul Brand and Louise Brand

Appellants/defendants

Gretchen Bardon

Respondent/plaintiff

Procedural Posture

Appeal / Court of Appeal Judgment

Legal Issues

  1. 1 Whether appellants were party to the contract for sale of goods; if so, whether there was a breach of implied warranties under the Sale of Goods Act; whether appellants owed a duty of care in negligence and if breach occurred; whether damage to peculiarly sensitive respondent was foreseeable; whether appellants were estopped from denying they were proper defendants.

Ratio Decidendi

Majority held that the Brands, trading as Thalgo Cosmetic(s), held themselves out as contracting party and were parties to contract; are estopped from denying liability; and breached both implied warranties and duty of care as the injury to respondent (a sensitive user) was not too remote and was foreseeable under Shirt principles.

Court Disposition

Appeal dismissed (by majority).

Orders

  • Appeal dismissed with costs.