Carey-Hazell v Getz Bros & Co (Aust) Pty Ltd [2004] FCA 853

FEDERAL COURT OF AUSTRALIA

Carey-Hazell v Getz Bros & Co (Aust) Pty Ltd [2004] FCA 853 TRADE AND COMMERCE – implant of mechanical or prosthetic mitral heart valve in applicant's heart – subsequent development of thromboembolisms with serious consequences including need to replace valve with tissue or bio-prosthetic valve – liability of supplier – supplier as deemed manufacturer – liability under s 75AD of the Trade Practices Act 1974 (Cth) for supply by manufacturer of defective goods causing injuries – whether liability under Part VA of the Act is strict or limited by requirement of a defect – operation of s 75AC in determining the standard of safety of goods – whether applicant as an injured person is required to prove the existence of the defect in goods at the supply time – whether strength of link to be proved between defect and injuries suffered is affected by use of the words 'because of' in s 75AD – common sense approach in determining causation of individual's injuries – whether safety of goods is such as might be expected by the public – instructional defects – whether failure to warn of risks rendered the goods defective – whether causation from failure to warn – whether causation from defect taken to have occurred in the manufacturing process – whether defect was present at the time the goods passed from manufacturer's control – application of defence under s 75AK(1)(a) – liability under s 74B for supply by manufacturer of goods which are not reasonably fit for the purpose for which the goods are acquired – what a consumer could reasonably expect from the goods acquired – whether Parts V and VA of the Act operate as a statutory 'pre-emption' of the general law of negligence in relation to the supply of defective goods – defence of the provision of advice or warnings to learned intermediaries TORTS – negligence – duty of care – medical practitioners – duty to exercise reasonable care and skill in the provision of professional advice – scope and content of duty – whether failure to advise or warn of material risks