Gherm v Pesl [2005] NSWSC 577

Gherm v Pesl [2005] NSWSC 577

The cross-claim failed because the deliveryman who made the representations was not an employee or agent of the Smith companies, either at common law or under s 84 of the Trade Practices Act 1974 (Cth). In any event, Pesl did not prove that the representations were negligently made or misleading or deceptive in the pleaded respect. The Smith companies were also not under a legal duty to warn Pesl of Service Bulletin 37 eleven years after the sale, where there had been no intervening contact, they did not know what use Pesl was making of the slasher, and they were not on notice that Pesl was using the lifting bracket to support the slasher while it was serviced. If any duty existed, a...

Jurisdiction
Australia
Judgment Date
16 December 2005
Procedural Posture
Personal Injury Proceedings and Cross Claim for Indemnity or Contribution / Judgment After Trial of Cross Claim Against the Second and Third Cross Defendants
Outcome
Verdict and judgment for the second and third cross-defendants; the cross-claimant is to pay the second and third cross-defendants' costs.
Legal Topics
['negligent Misrepresentation' 'misleading or Deceptive Conduct' 'negligence' 'post Sale Duty to Warn' 'agency' 'causation' 'contribution']
['torts' 'trade Practices' 'product Liability' 'workers Compensation'] ['negligent Misrepresentation' 'misleading or Deceptive Conduct' 'negligence' 'post Sale Duty to Warn' 'agency' 'causation' 'contribution']

Case Brief

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Procedural Posture

Personal Injury Proceedings and Cross Claim for Indemnity or Contribution / Judgment After Trial of Cross Claim Against the Second and Third Cross Defendants

Legal Issues

  1. 1 ['Whether representations about lifting and servicing the slasher were made by a person acting as agent for the Smith companies at common law or under s 84 of the Trade Practices Act 1974 (Cth).' 'Whether the pleaded representations were negligently made or misleading or deceptive contrary to s 52 of the Trade Practices Act 1974 (Cth).' 'Whether the Smith companies owed Pesl a duty to warn, after receiving Service Bulletin 37 in 1993, of the danger of using the gearbox lifting bracket to support the slasher.' "Whether any failure to warn caused the plaintiff's injuries and what contribution would have been just and equitable if liability were established."]

Ratio Decidendi

The cross-claim failed because the deliveryman who made the representations was not an employee or agent of the Smith companies, either at common law or under s 84 of the Trade Practices Act 1974 (Cth). In any event, Pesl did not prove that the representations were negligently made or misleading or deceptive in the pleaded respect. The Smith companies were also not under a legal duty to warn Pesl of Service Bulletin 37 eleven years after the sale, where there had been no intervening contact, they did not know what use Pesl was making of the slasher, and they were not on notice that Pesl was using the lifting bracket to support the slasher while it was serviced. If any duty existed, a...

Court Disposition

Verdict and judgment for the second and third cross-defendants; the cross-claimant is to pay the second and third cross-defendants' costs.

Orders

  • ['Verdict and judgment for the second and third cross-defendants;' "The cross-claimant is to pay the second and third cross defendants' costs."]