MORISON v PECK AEROFAKO BV v PECK [1992] NSWCA 163

MORISON v PECK AEROFAKO BV v PECK

SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL

PRIESTLEY JA, CLARKE JA, CRIPPS JA 25 and 26 August 1992, 3 September 1992

[1992] NSWCA 163

SALE OF GOODS — motor bike rider buys puncture repair product from storekeeper — on facts of case trial judge holds implied condition of sale that product reasonably fit for purpose — bike tyre deflates almost immediately after product used — bike crashes — question of cause of crash — bike rider brings proceedings against both storekeeper and manufacturer of product.

PRODUCT LIABILITY — in proceedings against manufacturer trial judge holds failure to give adequate warning that product could behave in the way that it did — finds crash caused by deflation of tyre caused by product — finds both storekeeper and supplier liable.

CAUSALITY — on appeal submitted that judge wrong on facts about cause of accident — held, no basis for disturbing his findings.

REASONS — on appeal submitted judge's reasons insufficient and therefore error of law — held, reasons sufficiently disclosed basis of decision.

DAMAGES — on appeal, challenge to assessment of future economic loss — held, amount within appropriate range.

INTEREST ON PAST GENERAL DAMAGES — interest rate used by judge too high — parties agree on lower figure.

Priestley JA Motor bike accident. On 4 October 1982 Mark Peck, ('the plaintiff'), then aged twenty, was injured while riding his motor bike on the Dungowan Road between Dungowan and Tamworth. Going around a left hand bend his bike went across the road and struck some posts in a safety fence.

This happened while the plaintiff was testing a repair just made to a puncture in the bike's rear tyre. The tyre had gone flat shortly before as he and other bike riders and friends riding pillion, were getting close to Dungowan. There he had bought a can of a product called Finilec and, with the help in particular of one of his friends named Ryan, used it to reflate the tyre.