Bethune v Qconn Pty Ltd FCA [2002] FCA 1485

Bethune v Qconn Pty Ltd FCA [2002] FCA 1485

The respondent was not liable for misleading or deceptive conduct because, although Mr Black falsely said the machine's appearance without side screens was standard, the applicant did not prove reliance or inducement in purchasing the machine. The contractual claims failed because the absence of the side screens and seat belt was apparent to the applicant on examination and any implied conditions had to be assessed in light of that known condition. The respondent nevertheless owed and breached a common law duty of care by selling plant for work use in a condition it knew or ought to have known was unsafe, namely without side side screens; that breach was a contributory cause of the...

Jurisdiction
Australia
Judgment Date
28 November 2002
Procedural Posture
Personal Injuries Claim for Damages Alleging Misleading or Deceptive Conduct, Breach of Contract and Negligence Arising From an Accident Involving a Case 1845 Uni Loader / Trial Judgment After Hearing; Application to Re Open the Applicant's Case and Amend the Statement of Claim Dismissed; Matter Adjourned Sine Die
Outcome
Judgment for the first applicant on negligence only, limited to 30 per cent of the agreed quantification of his claim; misleading or deceptive conduct and contract claims rejected; application to amend to plead breach of statutory duty dismissed; matter adjourned sine die with liberty to restore.
Legal Topics
['sale of Second Hand Construction Equipment' "absence of Side Safety Screens, Seat Belt and Operator's Manual" 'merchantable Quality and Fitness for Purpose' 'common Law Duty of Care by Vendor of Plant' 'apportionment for Contributory Negligence' 'extension of Time to Plead Breach of Statutory Duty']
['personal Injuries' 'misleading or Deceptive Conduct' 'contract' 'negligence' 'contributory Negligence' 'limitation of Actions'] ['sale of Second Hand Construction Equipment' "absence of Side Safety Screens, Seat Belt and Operator's Manual" 'merchantable Quality and Fitness for Purpose' 'common Law Duty of Care by Vendor of Plant' 'apportionment for Contributory Negligence' 'extension of Time to Plead Breach of Statutory Duty']

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Procedural Posture

Personal Injuries Claim for Damages Alleging Misleading or Deceptive Conduct, Breach of Contract and Negligence Arising From an Accident Involving a Case 1845 Uni Loader / Trial Judgment After Hearing; Application to Re Open the Applicant's Case and Amend the Statement of Claim Dismissed; Matter Adjourned Sine Die

Legal Issues

  1. 1 ['Whether the respondent was liable for damage under s 52 of the Trade Practices Act 1974 (Cth) or s 56 of the Fair Trading Act 1987 (SA).' 'Whether the contract of sale contained an implied term as to merchantable quality or fitness for purpose under s 71 of the Trade Practices Act 1974 (Cth) or s 14 of the Sale of Goods Act 1895 (SA), and whether that term was breached.' "Whether the respondent vendor owed the applicant purchaser a duty of care, breached it by selling the Case 1845 Uni-Loader without side screens, and caused the applicant's injury." "Whether the applicant's own conduct was a contributing cause of his injuries requiring apportionment under subs 27A(3) of the Wrongs Act 1936 (SA)." 'Whether the applicant should be permitted after judgment was reserved to re-open his case and amend the statement of claim to plead breach of statutory duty despite the Limitation of Actions Act 1936 (SA).']

Ratio Decidendi

The respondent was not liable for misleading or deceptive conduct because, although Mr Black falsely said the machine's appearance without side screens was standard, the applicant did not prove reliance or inducement in purchasing the machine. The contractual claims failed because the absence of the side screens and seat belt was apparent to the applicant on examination and any implied conditions had to be assessed in light of that known condition. The respondent nevertheless owed and breached a common law duty of care by selling plant for work use in a condition it knew or ought to have known was unsafe, namely without side side screens; that breach was a contributory cause of the...

Court Disposition

Judgment for the first applicant on negligence only, limited to 30 per cent of the agreed quantification of his claim; misleading or deceptive conduct and contract claims rejected; application to amend to plead breach of statutory duty dismissed; matter adjourned sine die with liberty to restore.

Orders

  • ['The matter be adjourned sine die with liberty to any party to bring the matter back on for hearing on seven days notice.' 'The application to amend the statement of claim is dismissed.']