Partridge v B.M.W. Australia Limited - [1999] NSWCA 252

CITATION: PARTRIDGE v. B.M.W. AUSTRALIA LIMITED & ORS. [1999] NSWCA 252

FILE NUMBER(S): CA 40123/97

HEARING DATE(S): 21 April 1999

JUDGMENT DATE:
19 August 1999

PARTIES :

Roger Gary Partridge (Appellant)
B.M.W. Australia Limited (1 Respondent)
Tom Byrne Pty. Limited (2 Respondent)
Bayerische Motoren Werke AG (3 Respondent)

JUDGMENT OF: Powell JA at 1; Beazley JA at 75; Stein JA at 76

LOWER COURT JURISDICTION: District Court

LOWER COURT FILE NUMBER(S) : DC 7653/94

LOWER COURT JUDICIAL OFFICER: Sinclair DCJ

COUNSEL: P.A. Johnson SC and P.M. Skinner (Appellant)
S.R. Donaldson (1, 3 Respondents)
D.G.T. Nock SC and S.E. Torrington (2 Respondent)

SOLICITORS: A.C. Boyle Neilson & Co. (Appellant)
Minter Ellison (1,3 Respondents)
Phillips Fox (2 Respondent)

CATCHWORDS: CONTRACT - Sale of goods - Motor cycle - Manufacturer sells goods to Australian distributor - Australian distributor sells goods to dealer on receipt of order from dealer - Dealer delivers order to Australian distributor on receipt of order from purchaser - Purchaser not brought into contractual relationship with either manufacturer or Australian distributor; NEGLIGENCE - Manufacturer of goods - Distributor of goods - Liability for damage caused by goods purchased through dealer - Alleged latent defect in goods - Alleged defect in design of goods or in materials used in manufacture of goods; NEGLIGENCE - Proof of - Res ipsa loquitur - Throttle on motor cycle jamming while motor cycle being ridden at speed - Whether inference of negligence available; SALE OF GOODS - Conditions and warranties - Whether sale by description - Whether purchaser relied on seller's skill and judgment - Whether goods of merchantable quality

DECISION: Appeal dismissed

48

IN THE SUPREME COURT
OF NEW SOUTH WALES
COURT OF APPEAL

CA 40123/97
DC 7653/94

POWELL JA
BEAZLEY JA
STEIN JA

19 August 1999

PARTRIDGE v. B.M.W. AUSTRALIA LIMITED & ORS.

JUDGMENT

1 POWELL JA: This is an appeal from a Judgment delivered, and verdict found, by Sinclair DCJ on 14 February 1997 in proceedings which had been brought by the Appellant - originally against four defendants but, in the end, only against the three Respondents - seeking damages in respect of injuries which he sustained in an accident which occurred when he was riding his motor cycle - a B.M.W. Model K100RS - on Eastern Valley Way, Castle Cove on 15 September 1985.
2 In the Statement of Claim which was filed - originally in the Common Law Division of this Court - on behalf of the Appellant, the Appellant’s claim against the First Respondent (“BMW Aust”) was framed upon two distinct bases:

(a) statutory counts based upon the provisions of the Trade Practices Act 1974 (Cth) (“the TP Act”) which rendered BMW Aust, as the importer of the Appellant’s motor cycle, the deemed manufacturer of the motor cycle (TP Act s. 74A(4)) and liable to compensate “the consumer” of the motor cycle for the loss and damage which the Appellant had suffered by reason of the fact that the motor cycle was not fit “for the purpose…

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.

Keep reading for free

Create a free CaseChat account to read Partridge v B.M.W. Australia Limited and more:

Read every judgment in full
Ask AI and get answers linked to paragraphs
See how each paragraph was cited in later cases
Download judgments as PDF or Word

Continue with Google

One click creates your free account or signs you in.

By continuing you agree to the Terms and Privacy Policy.

Details

Case: [1999] NSWCA 252
Decision Date: 19 August 1999

CaseChat Overview and Summary

The parties to this matter were the purchaser of a motor cycle and the manufacturer, B.M.W. Australia Limited. The purchaser brought proceedings against the manufacturer alleging negligence and breach of statutory implied conditions and warranties in relation to a motor cycle purchased from a dealer. The dispute concerned damage caused to the purchaser by the motor cycle, allegedly due to a latent defect in its design or manufacture, which resulted in the throttle jamming while the motor cycle was being ridden at speed. The case was heard in the Court of Appeal of New South Wales.

The central legal issues before the court were whether the manufacturer owed a duty of care to the ultimate purchaser of the motor cycle, and if so, whether that duty had been breached. The court also considered whether the sale of the motor cycle was a sale by description, whether the purchaser had relied on the seller's skill and judgment, and whether the motor cycle was of merchantable quality, as implied by the Sale of Goods Act. The applicability of the doctrine of *res ipsa loquitur* to infer negligence from the jamming throttle was also a key consideration.

The Court of Appeal dismissed the purchaser's appeal. The court reasoned that there was no contractual relationship between the manufacturer and the ultimate purchaser, as the motor cycle was sold by the manufacturer to an Australian distributor, who then sold it to a dealer, who in turn sold it to the purchaser. While acknowledging the manufacturer's duty of care to persons who might foreseeably be injured by a defect in their product, the court found that the evidence did not establish a latent defect in the design or manufacture of the motor cycle. The court also held that the conditions and warranties implied by the Sale of Goods Act did not extend to the manufacturer in this chain of distribution, and that the doctrine of *res ipsa loquitur* was not applicable on the facts presented.

Orders

Orders of the court

Appeal dismissed

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

CITATION:	PARTRIDGE v. B.M.W. AUSTRALIA LIMITED & ORS. [1999] NSWCA 252
FILE NUMBER(S):	CA 40123/97
HEARING DATE(S):	21 April 1999
JUDGMENT DATE:	19 August 1999
PARTIES :	Roger Gary Partridge (Appellant) B.M.W. Australia Limited (1 Respondent) Tom Byrne Pty. Limited (2 Respondent) Bayerische Motoren Werke AG (3 Respondent)
JUDGMENT OF:	Powell JA at 1; Beazley JA at 75; Stein JA at 76

LOWER COURT JURISDICTION:	District Court
LOWER COURT FILE NUMBER(S) :	DC 7653/94
LOWER COURT JUDICIAL OFFICER:	Sinclair DCJ

COUNSEL:	P.A. Johnson SC and P.M. Skinner (Appellant) S.R. Donaldson (1, 3 Respondents) D.G.T. Nock SC and S.E. Torrington (2 Respondent)
SOLICITORS:	A.C. Boyle Neilson & Co. (Appellant) Minter Ellison (1,3 Respondents) Phillips Fox (2 Respondent)
CATCHWORDS:	CONTRACT - Sale of goods - Motor cycle - Manufacturer sells goods to Australian distributor - Australian distributor sells goods to dealer on receipt of order from dealer - Dealer delivers order to Australian distributor on receipt of order from purchaser - Purchaser not brought into contractual relationship with either manufacturer or Australian distributor; NEGLIGENCE - Manufacturer of goods - Distributor of goods - Liability for damage caused by goods purchased through dealer - Alleged latent defect in goods - Alleged defect in design of goods or in materials used in manufacture of goods; NEGLIGENCE - Proof of - Res ipsa loquitur - Throttle on motor cycle jamming while motor cycle being ridden at speed - Whether inference of negligence available; SALE OF GOODS - Conditions and warranties - Whether sale by description - Whether purchaser relied on seller's skill and judgment - Whether goods of merchantable quality
DECISION:	Appeal dismissed