Cottee v Franklins Self Serve Pty Ltd

[1995] QCA 524

IN THE COURT OF APPEAL

SUPREME COURT OF QUEENSLAND

Appeal No. 91 of 1995

Brisbane

[Cottee v. Franklins and Anor]

BETWEEN:

JODIE LYNN COTTEE

(Plaintiff) Respondent

AND:

FRANKLINS SELF-SERVE PTY LTD

(First Defendant) Appellant

Macrossan CJ McPherson JA Moynihan J

Judgment delivered 28/11/1995

S eparate Reasons for Judgment of each member of the Court, concurring as to the order made.

APPEAL DISMISSED WITH COSTS

CATCHWORDS:	NEGLIGENCE - Respondent injured in attempt to prevent loaded shopping trolley from collapsing in supermarket carpark - whether system of checking trolleys for defects was adequate - whether system which would have revealed defect existed.
CONTRACT - Contractual bailment - unilateral contract - whether there was implied term of fitness.
Counsel:	Mr J.A. McDougall for the appellant Mr M. Martin for the respondent.
Solicitors:	McInnes Wilson and Jenson for the appellant. Baker Johnson for the respondent.
Hearing date:	03/08/1995
IN THE COURT OF APPEAL	[1995] QCA 524
SUPREME COURT OF QUEENSLAND

Appeal No. 91 of 1995

Brisbane

Before Macrossan CJ

McPherson JA

Moynihan J

[Cottee v. Franklins and Anor]

BETWEEN:

JODIE LYNN COTTEE

(Plaintiff) Respondent

AND:

FRANKLINS SELF-SERVE PTY LTD

(First Defendant) Appellant

REASONS FOR JUDGMENT - THE CHIEF JUSTICE

Judgment delivered 28/11/1995

The appellant, which was the first defendant below, appeals against a judgment entered against it at the suit of the plaintiff, a customer at its Woodridge store. The quantum of damages had not been in dispute. The respondent succeeded on the issue of liability and a judgment for $25,000 and costs was entered in her favour.

The respondent sued because she suffered injury when a shopping trolley collapsed when being used in the carpark attached to the store. The respondent had purchased goods in the store and being supplied with a trolley by a servant of the appellant was pushing it, containing the goods and her six month old child, towards her parked car. The carpark was owned by and under the control of the second defendant which also had been sued but successfully resisted the claim so that the action against it was dismissed below, although with no order made in respect of its costs.

It was one of the front wheels of the laden trolley that collapsed and it did so without prior warning when the trolley was being pushed over a speed bump. The collapse caused it to capsize and the respondent was injured while trying to restrain its toppling over.

The layout of the carpark area permitted vehicles to be parked so that the fronts or backs of individual cars reached right up to the ends of the constructed speed bumps. For customers using trolleys in the carpark, this layout did not conveniently permit them to go around rather than over the bumps when the park became filled with parked cars. It was accepted that the respondent had, in practical terms, no choice but to push her trolley over the speed bump on the way to her vehicle. It was not an issue on the appeal that the wheel of the trolley had collapsed because it was defective, and that without the collapse there would have been no capsize and hence no injury.

A principal allegation in the proceedings and the basis upon which the respondent succeeded below was that the appellant was negligent in not having in place a proper system of checking shopping trolleys to guard against the existence of defects. There was a further allegation, more elaborate, consideration of which can be put aside for the moment, based on breach of the contract alleged to apply between the appellant and each of its customers whereby, it was said, the appellant undertook to supply trolleys that were fit or reasonably fit for the purpose for which they were intended. Paragraph 16(a) of the particulars appearing in the pleading relied on the breach said to result from a failure to provide a safe shopping trolley. On the hearing of the appeal counsel for the appellant continued to rely upon this allegation but cited no authority to support it. The trial judge, finding against the appellant as he did, declared that he found it unnecessary to consider whether it had also breached a contract with the respondent.

The trial judge's finding in the respondent's favour in tort on the issue of negligence appears to contain deficiencies. It fails to deal with necessary aspects and it does not respond to what seems to be an absence of evidence on a critical matter.

The appellant did have in place procedures which might identify trolleys which were defective. A large number of trolleys were in use, some three hundred and fifty to four hundred of them, and two trolley boys had the task of collecting trolleys from the carpark after they had been used by customers. The boys wheeled them back to the store and they were instructed that if they exhibited defects in the course of collection, they should separate them for necessary repair before being returned to service. In addition, there was a maintenance programme under which the supplier of the trolleys would attend the store twice yearly and carry out maintenance. This system the trial judge has found to be defective but he has not identified the precise respects in which it fell short of a proper system or stated his reasons for concluding that a proper system of inspection would have avoided the accident. He seems to have gone straight from a declaration of the inadequacy of the existing system to a finding of liability without pausing to identify the causal link. What the judge has said was:

"the system was inadequate and the first defendant was negligent in using the existing system and in failing to have a better system, for example, a system such as regular and thorough random checks on trolleys which were loaded so as to determine whether they were defective ...".

He then continued:

"It is true, as counsel for the defendants has pointed out, that there is no evidence in the instant case of a system of checking which would with certainty, have revealed the wheel defect about which the plaintiff complains. However, the first defendant is not entitled to escape liability on that account in my opinion. It is sufficient, in my opinion, for the plaintiff to show a causal link between the first defendant's negligence and the injury she has suffered and I am satisfied on the balance of probabilities that the plaintiff has done that. Accordingly, I find that the first defendant is liable for the plaintiff's injury and for the damage which has flowed from that."

Not only was there no evidence, as his Honour conceded, that a system of checking would with "certainty" have revealed the defect, but there is also absent from his Honour's findings, a conclusion that there was a system which would even probably have revealed the defect. Further, there would have been no basis in the evidence for such a finding had he purported to make it. This seems a point with great relevance for the outcome of the case.

The expert evidence did not explain why the collapse of the wheel occurred. It was merely said by the respondent's expert that there were many reasons, including for example, metal fatigue, that could have been responsible. Accordingly, there was no evidence that any system of inspection that could be pointed to would, on the probabilities, have picked up the defect in the wheel, whatever its nature. There was no evidence concerning the length of time that the potential weakness, whatever it was, had existed in the trolley. Putting to one side the exact nature of an inspection system which would have been capable of detecting the defect (and no attempt was made to describe such a system) there would have been the further question whether it would have been reasonable to require the plaintiff to have adopted it and negligence on its part not to have done so. Thus the case in negligence presented on the respondent's behalf below was deficient. There is no basis for a supplementary finding which could now support the over-broad conclusion that the trial judge has drawn. On this basis the finding made in favour of the respondent cannot stand.

It is necessary now to consider the further submission put forward on the respondent's behalf to support the judgment namely the claim based in contract. The respondent had attended the appellant's store to purchase goods as part of a transaction in which it seemed to be said that it was in the contemplation of both parties that she would be supplied with a trolley to transport the goods to her car. A question is whether in this arrangement a term is to be implied that the trolley will be fit or reasonably fit for the contemplated purpose.

A difficulty arises because there are no findings of fact on matters which become relevant to the respondent's claim in contract as it is now sought to be maintained.

The first question to be considered is whether we are concerned with a contract for bailment or with what is no more than a mere gratuitous bailment. If it is the latter, the respondent cannot succeed and it was not suggested otherwise. There is a restricted level of care owed in such cases. A gratuitous lender of chattels is liable only to warn the borrower of defects known to the lender not apparent to the borrower making them unfit for the borrower's purpose: Chitty on Contracts, 27th ed., vol. 2, page 120.

Was there consideration for the bailment in the present case, that is, was there an underlying contract governing the supply of the trolley to the respondent? There is no finding of the existence of such a contract but the evidence relating to the matter was not extensive and does not seem to have become the subject of particular dispute. The effect of the evidence may be stated.

The respondent, on arrival at the appellant's store, selected a trolley from a collection of them available, but this particular trolley was abandoned by the respondent at the checkout counter. At the point when the respondent made her purchases, an attendant took a different trolley from a number there collected and presented it to the respondent with her purchased goods placed within it. The respondent was accompanied on her expedition by two small children and she put the smaller of them into the trolley in a particular position designed to be used for that purpose. The trolley was otherwise about three-quarters full with purchased items when the respondent left the store.

The contract which might be thought to be reasonably capable of identification in the circumstances described would have been one arising when the respondent paid for her selected goods at the checkout counter. It does not seem that the respondent was obliged to pay any more if she wished to make use of a trolley, and she would not have been charged less if she indicated that she did not require one. In respect of her earlier actions on entry into the store, can it realistically be suggested that her bare act of entering the store with the object of viewing the goods displayed there, and the accompanying prospect of her making a purchase would constitute legal consideration for the supply of a trolley should she want one? It is a possibility that one who enters the store may not make a purchase. It does not seem convincing to suggest that the appellant would be regarded as having breached an agreement with the respondent if it did not have available a trolley which it was able to supply, or would have been in breach if it refused to supply one. However, a contract entered into at the point of entry into the store was neither found by the judge nor relied upon and so on the facts of this case it is a matter that needs no further consideration. Nevertheless, the observation may be offered that it would seem artificial to conclude that a different standard of care should apply in respect of injury arising from the use of a defective trolley within the store prior to making a purchase, and one occurring later in the carpark. On the other hand, if the matter of liability is to be determined inflexibly according to the category in which the supply of the trolley is to be regarded, i.e. a gratuitous bailment or a bailment for reward, the result may indeed be different.

The recital of facts in the plaint covers the circumstances attending the plaintiff's visit to the store that have been outlined above and then speaking of the time when the respondent's purchase was concluded and the second trolley was presented to her by the checkout attendant, continues in paragraph 8:

"It was an implied term of the contract whereby the plaintiff purchased goods from the first defendant that any shopping trolley supplied by the first defendant would be safe to use."

The pleading particularises certain defects alleged to exist in the trolley which was presented to the respondent by the checkout attendant, but those defects were not shown to have been the operative cause of the accident. In view of the way in which the respondent's case was presented, that does not seem to be of consequence for present purposes. The plaint contains particulars of "negligence and/or breach of contract" of which those most relevant for consideration seem to be:

"(a) failing to provide a safe shopping trolley for the use of the plaintiff;

(c) failing to properly maintain the shopping trolley;

(d) failing to establish a system whereby shopping trolleys were properly inspected for
defects before being used by the plaintiff."

The particular most relevant to a claim based upon an alleged contract of bailment seems to be (a) with the others more obviously relevant to a claim based on negligence.

Was there then a contract of the relevant kind, that is, one of hire for reward concluded when the plaintiff came to pay for the goods she had selected although there was no relevant communication between the persons involved concerning the supply of the trolley?

To illustrate the problem that arises it might be asked whether a trolley should be regarded as being supplied for consideration when a passenger disembarks at an airport in the circumstances with which many persons will be familiar, that is when trolleys are there available for use but no separate charge is made for them. Perhaps the answer in that case would depend upon whether the airport operator or trolley supplier is the same entity as the one from whom the passenger purchased his flight ticket. Returning to the present case where the trolley supplier was in fact the supermarket operator, it is relevant to note cases where it has been held that obligations arising on the loan of the chattel where no separate consideration is assigned in respect of that chattel have been taken to be equivalent to the obligations that arise in other circumstances when some separate consideration is specified or allocated. It has been thought realistic to recognise that the loan of an item can be part of a larger overall situation in which the passage of consideration can be identified.

In Oliver v. Saddler [1929] A.C. 584 a firm of stevedores employed by ship owners and a porterage company employed by consignees of the cargo were each engaged in different aspects of unloading operations. The stevedores brought the cargo consisting of bags of maize onto the deck of the ship using their own rope slings for that purpose. Their duty in respect of the unloading ended at that point. The porterage company attended to the unloading of the bags from that point down to the wharf. The stevedores gratuitously permitted the porterage company to use their slings for the further part of the operation. A sling broke and a servant of the porterage company was injured. It was held that in the special circumstances of the case the stevedores owed a duty to the porters in respect of the fitness of the sling to take the load placed in it. There was some variation in the way in which the essential aspects of the situation were viewed, but it is clear that the stevedores were not permitted to protect themselves from liability as being mere gratuitous bailors. It was held that they were under a higher duty of care. Fundamentally this seems to have been because a single business operation was perceived as applying overall, in particular one matched to the business convenience of the bailors: see e.g. per Lord Atkin at 596. A similar approach was adopted in Andrews v. Home Flats Limited (1945) 173 L.T. 408 where the wife of a tenant of flats who entrusted luggage to the landlord for safekeeping was regarded as sufficiently within a relationship of bailment for reward for the purposes of determining liability when her luggage was lost.

In the present case the difficulty remains that there has been no finding that the supply of the trolley to the plaintiff was of a contractual character rather than gratuitous. A finding of this kind would necessarily be a finding of fact: cf. Derbyshire Building Co. Pty Ltd v. Becker (1962) 107 C.L.R. 633 at 641, 648 and 656. Reluctant though an appeal court will ordinarily be to make a finding where none has been attempted below, it could be said that the evidence here, so far as it goes, is clear enough to justify adopting this approach and that this Court is in as good a position as the trial judge to form a conclusion on facts that were not in dispute. It is open to us to hold that there was a contract broadly of the kind alleged by the respondent on the basis that she should be taken as having provided consideration for the supply of the trolley to her.

The next question is whether in the case of the trolley supplied for consideration there was a standard of care owed higher than that which is imposed in tort. No authority was cited to the Court although there is a great deal of it in existence. The course of decided cases in this area shows considerable variation in the terms in which, in the absence of special circumstances, the duty of care is expressed, and Palmer on Bailment, 2nd ed., at pp 1220-1225 and 1239-1245 collects a great number of them. This observation is particularly applicable to the English cases because, as will appear, there is greater certainty established by Australian authority. Before turning to the Australian authority some reference to the English cases may highlight features of the law in this area which might be thought to be less than completely satisfactory.

At one end of the scale in the English cases there are those which express the obligation in bailments for reward as being to supply a chattel which is fit for the contemplated purpose. At the other end of the scale the obligation is expressed in terms of a duty to take reasonable care to supply a chattel which is fit for the purpose (i.e. to avoid negligence in the matter of supply). There is a significant amount of English authority stating the obligation in terms of taking care. Chitty, 27th ed., vol. 2, page 135 and Halsbury 4th ed., vol. 2, paragraph 1554 express it in this fashion, and in a number of the more modern decisions there are statements to the same effect: see for example, Oliver v. Saddler [1929] A.C. 584 at 598, 599; Reed v. Dean [1949] 1 K.B. 188 at 193; Vendair (London) Ltd v. Giro Aviation Co. Ltd (1961) 1 Lloyd's Rep. 283 at 287; Hadley v. Droitwich Construction Co. Ltd [1968] 1 W.L.R. 37 at 41; Charterhouse Credit v. Tolly [1963] 2 Q.B. 683 at 708, and Astley Industrial v. Grimley [1963] 1 W.L.R. 584 at 579. Yet there are influential statements to the contrary where the duty is put in more absolute terms not dependent upon a duty to take care. The statement of Denning L.J. in White v. John Warwick & Co. Ltd [1953] 1 W.L.R. 1285 at 1293 citing Hyman v. Nye (1881) 6 Q.B.D. 685 sufficiently exemplifies this approach.

It may seem strange that this question was not more firmly settled in England. It may perhaps also surprise that to cover a wide variety of circumstances it is considered satisfactory to state a single implied obligation with unvarying content. It is a familiar proposition that only terms which are necessary to give business efficacy should be implied in contracts between individuals bargaining with respect to a particular situation: see Lister v. Romford Ice and Cold Storage [1957] A.C. 555 per Viscount Simonds at 576 and Codelfa Constructions Pty Ltd v. State Rail Authority of NSW (1982) 149 C.L.R. 337 per Mason J. at 345. It might have been expected that the philosophy obviously behind some of the tests adopted to determine whether terms would be applied in such cases would have influenced the form in which implied terms are stated for transactions for the broad categories, as well as the particular situation. But in fact there is a bluntness in the approach adopted which seems to be compelled by the division of a range of possible circumstances into just two broad categories, gratuitous and contractual. In contrast to this bluntness the approach of Pearson L.J. in Astley Industrial Trust Limited v. Grimley [1963] 1 W.L.R. 584 at 590 seems attractive. At 590 Pearson L.J. said that:

"... normally, in a hiring or hire purchase agreement, the person who lets goods on hire assumes some contractual responsibility for the fitness of the goods for the purpose which the hirer requires them, but that the existence and the extent of this obligation depends upon the contractual intention of the parties, which is to be ascertained from the provisions of the particular agreement and from the relevant facts of the situation in relation to which the agreement was made."

While this approach may be attractive it would require a very optimistic reading of the authorities to deduce from them a principle which will always allow this degree of flexibility. At 595-596 Pearson L.J. was disposed to draw some distinction between the obligation which arises on the one hand in respect of the basic requirements under the hire of a chattel and on the other those more detailed and demanding expectations concerning its characteristics which, depending on the circumstances, it might be possible to support. The case involved the hire purchase of a secondhand lorry and the content of the term of fitness that was implied there was narrow indeed. At 595, 596 His Lordship said there was a fundamental requirement which could be implied, namely that the lorry in question had to be capable of self-propulsion along a road and capable of receiving and carrying and tipping loads of materials. However, he added that, "It was ... not reasonably to be expected that a six year old tipping lorry, not stated to have been overhauled or reconditioned, would be wholly free from latent defects."

It might also have been expected that some distinction might be allowed between, on the one hand, a breach of warranty of fitness in respect of a chattel's inability to perform the task immediately contracted for, so causing economic loss to the hirer, and on the other hand a breach due to the presence of a defect which causes consequential personal injury, but such a distinction has not been maintained in either the English or Australian cases. A defect which, in operation causes injury, seems simply to have been regarded as a lack of fitness for the intended purpose. If the respondent and the agents of the appellant had been asked when the trolley was delivered to the respondent whether they were expecting a higher level of obligation to be owed in respect of it than the duty of care which would apply between users of the highway, then, although the matter is essentially one of speculation, it might be that they would have answered in the negative. Expectations concerning the duty of care owed in respect of personal injury tend to be heavily influenced in modern circumstances by the pervading tort of negligence. Even in areas of purely tortious liability the tort of negligence has tended to be the dominant one. However, in the area with which we are concerned it can be accepted that if there is a contract that is applicable it will govern liability. Further, even though nothing relevant may be expressly agreed by the parties in dealing with one another, the resultant obligation that is owed has come to receive a fixed content. This, for example, has long been obviously so in the case of sale of goods where section 17 of the Sale of Goods Act 1896 states an implied term of fitness for purpose.

More importantly, it can be accepted that the position in Australia, even though not in England, is sufficiently established and defined in contractual bailment cases. The High Court has indicated that the implied term in the case of hire of chattels is that they shall be reasonably fit for the purpose hired, the obligation in this respect being identical with that applicable in the sale of goods or the taking possession of chattels under contracts of hire purchase. In Derbyshire Building Co. Pty Ltd v. Becker (1962) 107 C.L.R. 633 which was a case where damages were claimed for personal injuries, McTiernan J. at 645 accepted as a correct statement of the law the proposition of Jordan C.J. in Gemmell Power Farming Co. Ltd v. Nies (1935) 35 S.R. (NSW) 469 as follows:

"When one person, for value, supplies a chattel to another to be used for an agreed or stated purpose, or for a purpose indicated by the nature of the chattel, he impliedly promises, in the absence of some provision to the contrary, that it is reasonably fit for such use."

In Derbyshire at 649 Kitto J. accepted that the weight of judicial opinion was "in favour of applying to all contracts for the supply of chattels, including contracts of bailment, the principles laid down with respect to sales" in the Sale of Goods Act and in particular where an implication as to the fitness of a chattel arose under a contract it was not limited to fitness extending only so far as the supplier knew or ought to have known. Taylor J. at 656-7 accepted that the same rule of implication concerning the reasonable fitness of a chattel for a specified purpose applied in the case of sale, hire purchase and hire, and Windeyer J. at 659 accepted that the same rule applied for sale as for hire and the ordinary implication was that a chattel should be reasonably fit for its contemplated use.

In the present case since the appellant is a corporation, a further basis upon which the respondent might have put her case was perhaps available under s.71 of the Trade Practices Act 1974. Although this would potentially have been capable of assisting the respondent because the statute, when applicable, results in a reversal of the onus in respect of reliance on the knowledge and skill of the supplier, this difference would not in the present case affect the outcome. In the circumstances in which the trolley was supplied to the respondent at the checkout counter, clearly she was not relying on her own judgment. Further, the Trade Practices Act was not referred to in either the pleadings or submissions.

It is not particularly profitable to undertake an extended consideration of cases and issues not fully covered by the arguments presented. There is an additional deficiency to confront here because basic findings of fact by the trial judge are absent. This Court should do the best it can in the circumstances. It would not be appropriate to order a new trial to produce findings that are lacking since the relevant matters were sufficiently in issue below and both sides have had an opportunity of presenting such arguments as they wished to advance.

On the facts as they appear and taking into account the implications arising from them, it should be held that the respondent was injured due to the breach of an implied term of fitness of the trolley for the particular purpose which was obvious to both parties as being intended. The trolley came out of the possession of the appellant's agents and it was obvious that the respondent was in the relevant sense relying on them. The appellant should be held to be in breach of its obligation in respect of the supply of the chattel. No further finding is necessary and the result is that the

respondent is entitled to hold her judgment.	The appeal should be dismissed with costs.
IN THE COURT OF APPEAL SUPREME COURT OF QUEENSLAND

Appeal No. 91 of 1995

Brisbane

Before Macrossan C.J.

McPherson J.A.

Moynihan J.

[Cottee v. Franklins & Anor]

BETWEEN

JODIE LYNN COTTEE

(Plaintiff) Respondent

AND

FRANKLINS SELF-SERVE PTY. LTD.

(First Defendant) Appellant

REASONS FOR JUDGMENT - McPHERSON J.A.

Judgment delivered the 28th day of November 1995

The facts are set out in detail in the reasons for judgment of the Chief Justice. Essentially what happened is that the plaintiff was injured in trying to prevent a loaded shopping trolley from toppling over. The trolley came from the defendant's supermarket and was carrying groceries which she had bought there. The accident happened in the car park (which was not under the defendant's control) near the supermarket. On the findings at the trial, which in this particular were not contested on appeal, the accident was due to the fact that the trolley had a defective wheel.

The plaintiff's claim was framed primarily in negligence, and alternatively, but perhaps less convincingly having regard to the form of the plaintiff's pleading, as a breach of contract. I am satisfied that an inference of negligence against the defendant in relation to maintaining the trolley in proper working order, cannot be be justified on the material at the trial. If the plaintiff is to succeed at all, it must be on the basis of a breach of contract.

The decision of the High Court in Derbyshire Building Co. Pty. Ltd. v. Becker (1962) 107 C.L.R. 633 is authority binding us to hold that in a contract for a supply of a chattel, including a contract of bailment, there is an implication that the chattel is reasonably fit for its contemplated purpose. The principal question on the appeal is whether in this instance there was a contract between the parties for the supply of the trolley to the plaintiff. There is no finding to that effect by the primary judge. Nevertheless the primary facts are not in dispute. The plaintiff went to the defendant's shop to buy groceries. On entering the shop she equipped herself with a trolley, which she took from the rack of trolleys provided, in which to place the goods she had it in mind to buy. On paying for them at the checkout counter she was supplied with another trolley (the defective trolley, as it turned out to be) in which to take her purchases away.

Plainly there was a bailment to the plaintiff of that trolley. If, in order to succeed it is necessary to show that it was a bailment for reward, or (if there is a difference) a contract of bailment, then, in my opinion, that requirement is also satisfied. The consideration can legitimately be expressed as follows. If you, the customer, come to my store with a view to shopping there, I promise and warrant that any trolley with which you are supplied will be reasonably fit for its purpose. Although it is not necessary to decide the point here, the contract that results in such a case is probably not dependent on any actual purchase of goods in the shop (which would ordinarily not take place until the sale was concluded at the checkout counter: Pharmaceutical Society v. Boots Cash Chemists (Southern) Ltd. [1953] 1 Q.B. 401). There is a sufficient detriment to the customer in her coming to the defendant's store with a view to shopping there. She might have gone somewhere else to do her shopping, or not gone shopping at all. The contract is thus of the kind commonly described as unilateral; that is to say, it involves on the part of the plaintiff the doing of an act (going to shop at the defendant's store) in exchange for the defendant's promise or warranty that any trolley supplied to her will be fit for that purpose.

Such contracts are exemplified in Carlill v. Carbolic Smoke Ball [1893] 1 Q.B. 256. The plaintiff's act constituted simultaneously the acceptance of the defendant's promise and the executed consideration for it. In relation to a contract of that kind, it was said in Australian Woollen Mills Pty. Ltd. v. The Commonwealth (1954) 92 C.L.R. 4124, 456-457, that:

"Between the statement or announcement, which is put forward as an offer capable of acceptance by the doing of an act, and the act that is put forward as the executed consideration for the alleged promise, there must subsist, so to speak, the relation of a quid pro quo."

The act, as their Honours had previously remarked, must be "really done in consideration of a potential promise inherent in the statement or announcement". Inferring that this requirement was satisfied in the present case raises few problems. It is true that there was not an express statement or announcement by the defendant that the trolley would be reasonably fit. There would be no need for it to be expressed if, as was settled in Derbyshire Building Co. v. Becker, the law implies such a promise. What there was here was an invitation to use the trolley for the purpose of shopping. The circumstances that the defendant maintained the shop; that it was at the time open to customers; and that trolleys were made available for their use in shopping are sufficient to justify the inference of an invitation to the shopping public to make use of those facilities. By entering the premises, shopping, and using one of those trolleys, the plaintiff inferentially acted on that invitation. In a society in which commerce is increasingly carried on through the medium of self- service procedures, which are known to and understood by everyone, there is no difficulty in inferring that in using the trolley the plaintiff relied on the promise which the law implied against the defendant. Expressing it in another way, the law confirms her reasonable expectation that the trolley she used would be reasonably fit for its contemplated purpose. As regards the state of the premises themselves a similar warranty has long been implied under the principle laid down in Francis v. Cockerill (1870) L.R.5 Q.B. 501.

Some of the matters I have canvassed do not appear to have been raised at the trial in as precise a manner and form as one might have been led to expect or hope for. But, as I have said, the plaintiff's pleadings do allege breach of contract, and they aver the defendant's failure to provide a safe shopping trolley for the plaintiff's use. If under the Judicature system of pleading the necessary facts are alleged (as, by a narrow margin, I consider they are here), it is not necessary to plead the reasoning by which the requisite legal conclusion arrived at if the essential facts constituting the cause of action are sufficiently raised in the pleading and at the trial. An illustration is provided by Shaw v. Shaw [1954] 2 Q.B. 429, 441.

Although in point of precision the plaintiff's pleading leaves something to be desired, nothing has been identified to suggest that the essential facts were not fully litigated, or that the defendant was in any way taken by surprise, or that it would have conducted its case differently at the trial had the plaintiff's claim been focused, as it should have been, on breach of contract.

I agree with the Chief Justice that the appeal would be dismissed with costs.

IN THE COURT OF APPEAL

SUPREME COURT OF QUEENSLAND

Appeal No. 91 of 1995

Brisbane

Before Macrossan C.J. McPherson J.A. Moynihan J.

[Franklins Self-Serve Pty. Ltd. v. Cottee]

BETWEEN:

JODIE LYNN COTTEE

(Plaintiff) Respondent

AND:

FRANKLINS SELF-SERVE PTY. LTD.

(First Defendant)
Appellant

REASONS FOR JUDGMENT - MOYNIHAN J.

Judgment delivered 28/11/1995

The reasons prepared by the Chief Justice and by McPherson

J.A. canvass the facts and the legal issues which arise in the

determination of this appeal. I agree that the finding of

negligence against the appellant cannot be sustained. I agree with the Chief Justice and McPherson J.A. that the appellant became bound by the duty laid down by the High Court in

Derbyshire Building Co. Pty. Ltd. v. Becker (1962) 107 C.L.R. 663

to supply a trolley reasonably fit for its contemplated purpose.

Although the pleadings and the conduct of the trial as to

the issue of the breach of that obligation leave something to be

desired I agree that the breach of that obligation has been

established and that the appeal should be dismissed with costs.