Drake v Mylar Pty Ltd & Anor [2011] NSWSC 1578

Drake v Mylar Pty Ltd & Anor [2011] NSWSC 1578

The Court accepted that the plaintiff's fall was probably caused by a defect in the joist and that the joist, although labelled MGP 10, did not have the structural qualities of MGP 10 timber. By applying the black line signifying MGP 10 and allowing the timber to leave its mill, the second defendant represented that the timber met MGP 10 standards and was suitable for structural uses. That representation was misleading and deceptive and a false representation of grade, and the plaintiff suffered injury through reliance on it. The second defendant did not establish any defence to the plaintiff's claim under s 82 for breaches of ss 52 and 53, so judgment was entered for the plaintiff...

Jurisdiction
Australia
Judgment Date
20 December 2011
Procedural Posture
Common Law Proceedings for Damages Under the Trade Practices Act 1974 (cth) Arising From Alleged Misleading and Deceptive Conduct, False Representation of Timber Grade, and Defective Goods Causing Personal Injury / Principal Judgment on Liability; Quantum of Damages to Be Assessed in a Separate Hearing
Outcome
Judgment for the plaintiff against the second defendant pursuant to s 82 of the Trade Practices Act 1974 (Cth), with quantum of damages to be assessed separately; costs reserved.
Legal Topics
['misleading and Deceptive Conduct' 'false or Misleading Representations as to Goods Being of a Particular Grade' 'defective Goods Causing Injury' 'machine Graded Pine Labelled MGP 10' "workers' Compensation Defence" 'state of Scientific or Technical Knowledge Defence' 'contributory Negligence or Reduction of Damages']
['trade Practices' 'consumer Protection' 'product Liability' 'personal Injury'] ['misleading and Deceptive Conduct' 'false or Misleading Representations as to Goods Being of a Particular Grade' 'defective Goods Causing Injury' 'machine Graded Pine Labelled MGP 10' "workers' Compensation Defence" 'state of Scientific or Technical Knowledge Defence' 'contributory Negligence or Reduction of Damages']

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Procedural Posture

Common Law Proceedings for Damages Under the Trade Practices Act 1974 (cth) Arising From Alleged Misleading and Deceptive Conduct, False Representation of Timber Grade, and Defective Goods Causing Personal Injury / Principal Judgment on Liability; Quantum of Damages to Be Assessed in a Separate Hearing

Legal Issues

  1. 1 ["Whether the joist failed because it was defective or whether it failed because of the force of an impact applied to it during the plaintiff's fall" 'Whether labelling the joist as MGP 10 amounted to misleading or deceptive conduct and a false representation if the joist did not have the structural qualities of MGP 10 timber' 'Whether the plaintiff established loss caused by reliance on the representation that the timber was MGP 10' "Whether the plaintiff's claim under s 75AD of the Trade Practices Act 1974 (Cth) was defeated by the defence in s 75AI concerning workers' compensation" 'Whether the subject defect was discoverable by the state of scientific or technical knowledge in March 2005 for the purposes of s 75AK' "Whether any damages under s 75AD should be reduced by reference to the plaintiff's contribution to his loss under s 75AN"]

Ratio Decidendi

The Court accepted that the plaintiff's fall was probably caused by a defect in the joist and that the joist, although labelled MGP 10, did not have the structural qualities of MGP 10 timber. By applying the black line signifying MGP 10 and allowing the timber to leave its mill, the second defendant represented that the timber met MGP 10 standards and was suitable for structural uses. That representation was misleading and deceptive and a false representation of grade, and the plaintiff suffered injury through reliance on it. The second defendant did not establish any defence to the plaintiff's claim under s 82 for breaches of ss 52 and 53, so judgment was entered for the plaintiff...

Court Disposition

Judgment for the plaintiff against the second defendant pursuant to s 82 of the Trade Practices Act 1974 (Cth), with quantum of damages to be assessed separately; costs reserved.

Orders

  • ['Judgment for the plaintiff against the second defendant pursuant to s 82 of the TP Act, with the quantum of damages to be assessed in a separate hearing.' 'Costs reserved.']