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Date: Wed, 18 Jan 2006 15:35:55 +1100 From: Neil Foster Subject: NSW case on duty of care owed by supplier of defective goods
Dear Colleagues; In looking over decisions of the NSW Court of Appeal from late last year I noticed the interesting decision in McPherson's Ltd v Eaton & Ors [2005] NSWCA 435. The question is whether a supplier of defective goods has a duty of care to someone whom he/she knows will use those goods (not necessarily the purchaser). Here it was a supplier of asbestos sheets, and the plaintiff a worker who contracted asbestosis through working on those sheets. In Donoghue v Stevenson terms, whether Mr Minghella, proprietor of the cafe, could also have been sued. The Court holds that it is possible to find a duty of care, but that "something more" needs to be established than simply the relationship of supplier and user. Mason P in particular has an interesting discussion of what sort of duty this is, generalised or specific, picking up the debate in the High Court in Vairy v Wyong Shire Council which we noted last year, and which was also present in Neindorf. He concludes on this issue that he is obliged to formulate a "specific" rather than "general" duty and articulates it as a duty to take "reasonable care in the avoidance of personal injury by reference to what the distributor knows or has reason to know" - para [17]. But he would impose a higher duty in the case of a distributor who was themselves responsible for the defect in the product, rather than simply passing it on. Ipp JA and Hodgson JA generally agree, although there is a question as to whether the standard is "ought to have known" or "had reason to know" (Mason P preferring the latter - see [23], Ipp & Hodgson JJA tending to think the former is adequate.) The Court as a whole remitted the case back to the lower court, however, because the trial judge had not clearly enough spelled out the reasons for his finding of a breach of duty.
Regards
Neil
Foster
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