DAVID JONES LIMITED WILLIS Sale of Goods-Sale of shoes by Particular purpose for which shoes
required-Reliance on seller's skill or judgment--Implied condition as to fitness- Sale by description Merchantable quality" of shoes-Sale of Goods Act 1923 SYDNEY,
(N.S.W.) (No. 1 of 1923), sec. 19 1, (2)*. Aug. 15, 17.
The plaintiff claimed from the defendant damages for an alleged breach of a MELBOURNE,
warranty of fitness implied under sec. 19 (1) of the Sale of Goods Act 1923 (N.S.W.), in relation to the purchase of a pair of shoes from the defendant, who was a retail distributor of footwear not manufactured by it. The plaintiff stated in evidence that she told the defendant's saleswoman who attended her that she wanted walking shoes, that she had a bunion on her foot and wanted a comfortable pair of shoes: that she was shown three pairs, and finally pur- chased a particular pair which she had tried on, on the recommendation of the *The Sale of Goods Act 1923 (N.S.W.),
he be the manufacturer or not), there sec. 19, provides :- Subject to the
is an implied condition that the goods provisions of this Act
shall be reasonably fit for such pur is no implied warranty or condition as
(2) Where goods are to the quality or fitness for any particu-
bought by description from a seller lar purpose of goods supplied under a
who deals in goods of that description contract of sale, except as follows :-
(whether he be the manufacturer or
1Where the buyer expressly or by not), there is an implied condition that implication makes known to the seller
the goods shall be of merchantable the particular purpose for which the
quality. Provided that if the buyer goods are required SO as to show that
has examined the goods there shall be the buyer relies on the seller's skill or
no implied condition as regards defects judgment, and the goods are of a
which such examination ought to have description which it is in the course of the seller's business to supply (whether
52 CLR 111
saleswoman. On the third occasion of wearing them the heel of one of the shoes came off, and as a result the plaintiff sustained a fractured leg. Evidence was given that the shoes were "a very bad job ,, and that the heels were not properly fastened on.
(1) By the whole Court, that there was evidence fit to be submitted to a jury respect of a cause of action under sec. 19 (2) of the Sale of Goods Act 1923 (N.S.W.) as there was evidence upon which the jury was entitled to find (a) that the shoes were bought by description, and (b) that the implied condition that they were of merchantable quality had been broken.
(2) By Rich, Starke and McTiernan JJ., that, in respect of any cause action founded upon sec. 19 (1) of the Sale of Goods Act 1923, it was for the…
Grounds of appeal
[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.
[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.
[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.
Consideration
[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.
[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.
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AGLC
David Jones Ltd v Willis [1934] HCA 47
Case
[1934] HCA 47
Decision Date
CaseChat Overview and Summary
In *David Jones Ltd v Willis*, the plaintiff, Mrs Willis, sued the defendant, David Jones Ltd, for damages arising from a broken leg sustained when the heel of a pair of shoes purchased from the defendant detached. Mrs Willis claimed a breach of an implied warranty of fitness under section 19(1) of the *Sale of Goods Act 1923* (NSW). She had informed the saleswoman that she required comfortable walking shoes and had a bunion, and purchased a pair on the saleswoman's recommendation. The shoes were described as being "a very bad job" with improperly fastened heels.
The High Court of Australia was required to determine whether there was sufficient evidence to support a cause of action under either section 19(1) or section 19(2) of the *Sale of Goods Act 1923* (NSW). Specifically, the court considered whether the shoes were bought by description, thereby implying a condition of merchantable quality under section 19(2), and whether the plaintiff had made known a particular purpose for the shoes to the seller, demonstrating reliance on the seller's skill or judgment, thus implying a condition of fitness for that purpose under section 19(1).
The Court held that there was evidence upon which a jury could find a breach of section 19(2), as the shoes could be considered to have been bought by description and were not of merchantable quality due to the defective heels. Regarding section 19(1), the Court found that it was open to a jury to determine that the plaintiff had made known the particular purpose of walking and had relied on the seller's skill or judgment, and that the shoes were not reasonably fit for that purpose. The Court noted that the defect in the shoes was such that they were not of merchantable quality and were unfit for walking.
The appeal was dismissed. The Court affirmed that in a retail sale, a buyer's request for goods by description, coupled with selection from those offered, could constitute a sale by description under section 19(2). Furthermore, the Court found that a jury could infer reliance on the seller's skill or judgment under section 19(1) even in a retail context, particularly when a specific need, such as comfort for a foot condition, was communicated.