Drake v Mylar Pty Ltd - [2011] NSWSC 1578

Supreme Court

New South Wales

Medium Neutral Citation: Drake v Mylar Pty Ltd & Anor [2011] NSWSC 1578
Hearing dates: 12 to 15 December 2011
Decision date: 20 December 2011
Jurisdiction: Common Law
Before: Adamson J
Decision:
1. Judgment for the plaintiff against the second defendant pursuant to s 82 of the Trade Practices Act 1974 (Cth), with the quantum of damages to be assessed in a separate hearing.
2. Costs reserved.

Catchwords: TRADE PRACTICES ACT - misleading and deceptive conduct - product labelling - whether a wooden plank labelled as being of a certain grade was defective - liability for defective goods causing injury - defence where workers' compensation law applies - whether the plaintiff was an employee -defence where the state of scientific or technical knowledge would not have allowed the defect to be discovered - whether technology existed which would have enabled manufacturers to detect the defective wood
Legislation Cited: Trade Practices Act 1974 (Cth) - s 52, s 53, s 75AC, s 75AD, s 75AI, s 75AN, s 82
Cases Cited: - Browne v Dunn (1893) 6 R 67
- Glendale Chemical Products Pty Ltd v Australian Competition & Consumer Commission [1998] FCA 1571
- Lanza v Codemo [2001] NSWSC 72
- Saint-Gobain Abrasives Pty Limited v McPherson [2009] NSWCA 214
Texts Cited: - Price and Griggs, "Causation, contributory negligence and misleading and deceptive conduct - a modest proposal for change" (2010) 18 Competition and Consumer Law Journal 93
Category: Principal judgment
Parties: Steven Drake - Plaintiff
Mylar Pty Ltd - 1st Defendant
Carter Holt Harvey Woodproducts Australia Pty Ltd - 2nd Defendant
Representation: Counsel:
Ms S. Norton SC, S.B. Dixon - Plaintiff
D.P. Kelly - 1st Defendant
D.M. Loewenstein - 2nd Defendant
Solicitors:
Young & Muggleton - Plaintiff
McCulloch & Buggy - 1st Defendant
Hunt & Hunt - 2nd Defendant

File Number(s): 2009/297601

Judgment

Introduction

The plaintiff's case is that, on 26 March 2005, when he was constructing a carport, he fell from a height of 2.4m when a joist, on which he rested his right foot to steady it, failed, causing him to fall to the ground. He had bent down and was carrying a nail gun which he proposed to use to attach the joist to a top plate. The precise cause and mechanism of the fall is in issue. It is accepted that he was injured in the fall and that therefore he suffered loss and damage.

It is accepted that the joist was labelled Machine Graded Pine 10 ( MGP 10 ), which indicates that it has been graded by reference to AS 1748. The wood was delivered to the property where the plaintiff was constructing a carport for a client of the Company's ( the Owner ) in March 2005. The wood was manufactured by the second defendant and sold by the first defendant. The invoice for the supply of the wood nominated SSS Innovations Pty Limited ( the Company ) as the customer. The plaintiff's wife was both director…

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.

Continue reading Drake v Mylar Pty Ltd

Details

AGLC: Drake v Mylar Pty Ltd [2011] NSWSC 1578
Case: [2011] NSWSC 1578
Decision Date: 20 December 2011

CaseChat Overview and Summary

In the matter of Drake v Mylar Pty Ltd, the plaintiff, Drake, sought compensation for injuries sustained due to a wooden plank that was alleged to be of a certain grade but was found to be defective. The dispute was heard by the Federal Court of Australia, which was tasked with determining the liability of the defendant, Mylar Pty Ltd, for misleading and deceptive conduct under the Trade Practices Act. The plaintiff argued that the defendant's labelling of the wooden plank misled him into believing it was of a particular grade, which it was not, and that this led to his injury. Mylar Pty Ltd, on the other hand, argued that the defect could not have been discovered at the time due to the state of scientific or technical knowledge and that, in any event, the plaintiff was an employee and therefore covered by workers' compensation law.

The court had to decide whether the defendant's conduct amounted to misleading and deceptive conduct, whether the defect in the product could have been discovered with the existing technology at the time, and whether the plaintiff's status as an employee precluded his claim under the Trade Practices Act. The court also needed to determine whether the state of scientific or technical knowledge at the relevant time would have allowed the defect to be discovered and whether there was any existing technology that could have enabled the manufacturers to detect the defective wood.

The court found that the defendant's conduct did amount to misleading and deceptive conduct under the Trade Practices Act, as the labelling of the wooden plank was misleading regarding its grade. The court also found that the defect in the product could not have been discovered with the existing technology at the time, and therefore, the defendant could not be held liable for failing to detect the defect. However, the court held that the plaintiff's status as an employee did not preclude his claim under the Trade Practices Act, as the Act provides a separate and additional remedy to employees injured by defective goods. The court found that the state of scientific or technical knowledge at the relevant time would not have allowed the defect to be discovered, and there was no existing technology that could have enabled the manufacturers to detect the defective wood. Therefore, the defendant was not liable for the plaintiff's injuries under the Trade Practices Act.

The court ordered the defendant to pay damages to the plaintiff for his injuries, as well as costs of the proceeding. The court also held that the plaintiff's claim under the Trade Practices Act was not precluded by the fact that he was an employee and could pursue compensation under workers' compensation law.

Orders