Bethune v Qconn Pty Ltd

[2002] FCA 1485

FEDERAL COURT OF AUSTRALIA

Bethune v Qconn Pty Ltd FCA [2002] FCA 1485

PERSONAL INJURIES – claim for damages for personal injuries suffered by the applicant in an accident involving a Case 1845 Uni-Loader (a “Bobcat” – style machine) – liability of the respondent in issue

MISLEADING OR DECEPTIVE CONDUCT – whether the respondent was liable for the applicant’s damage under s 52 of the Trade Practices Act 1974 (Cth) or s 56 of the Fair Trading Act 1987 (SA)

CONTRACT – whether the contract of sale between the applicant and the respondent contained an implied term as to “merchantable quality” by virtue of s 71 of the Trade Practices Act 1974 (Cth) or s 14 of Sale of Goods Act 1895 (SA) that was breached by the respondent

NEGLIGENCE – whether the respondent vendor owed the applicant purchaser a duty of care – whether the respondent breached any such duty – whether the harm suffered by the applicant was caused by any such breach

CONTRIBUTORY NEGLIGENCE – whether the conduct of the applicant was a contributing cause of his injuries for the purposes of apportioning damage under the Wrongs Act 1936 (SA)

LIMITATION OF ACTIONS – whether an application by the applicant to re-open his case and amend his statement of claim by pleading a new cause of action should be allowed under the Limitation of Actions Act 1936 (SA)

Trade Practices Act 1974 (Cth) ss 52
Fair Trading Act 1987 (SA) ss 56
Occupational Health, Safety and Welfare Act 1986 (SA) subs 24(1)
Wrongs Act 1936 (SA) subs 27A(3)
Law Reform (Contributory Negligence and Apportionment of Liability) Act 2001 (SA)
Sale of Goods Act 1895 (SA) ss 14 I, 14 II
Limitation of Actions Act 1936 (SA) ss 35, 36, 48

Henjo Investments Pty Ltd v Collins Marrickville Pty Ltd (1988) 79 ALR 83 cited
Kabwand Pty Ltd v National Australia Bank Ltd (1989) 11 ATPR ¶40-950 cited
Bartlett v Sidney Marcus Ltd [1965] 2 All ER 753 applied
Atkinson v Hastings Deering (Queensland) Pty Ltd (1987) 71 ALR 93 cited
Lambert (sub nom Lexmead (Basingstoke) Ltd) v Lewis [1982] AC 225 considered
Grant v Australian Knitting Mills Ltd [1936] AC 85 distinguished
Daley v Gypsy Caravan Co Pty Ltd [1966] 2 NSWLR 22 distinguished
Slivak v Lurgi (Australia) Pty Ltd (2001) 205 CLR 304 applied
Chicco v The Corporation of the City of Woodville (1990) Aust Torts Reports ¶81–028 cited Maynard v Rover Mowers Ltd [2000] QCA 26 cited
March v E & M H Stramare Pty Ltd (1991) 171 CLR 506 applied
Podrebersek v Australian Iron and Steel Pty Ltd (1985) 59 ALR 529 applied
Cubillo v Commonwealth(No 2) (2000) 103 FCR 11 applied

PAUL JOHN BETHUNE, BERNADETTE LISA RUSSELL, BROOKE CHLOE BETHUNE by her next friend BERNADETTE LISA RUSSELL AND CHASE PAUL BETHUNE by his next friend BERNADETTE LISA RUSSELL v QCONN PTY LTD trading as CASE ADELAIDE (ACN 065 841 922)

NO S 34 of 1999

O’LOUGHLIN J
28 NOVEMBER 2002
ADELAIDE

IN…