BRAND and ANOR v BARDON [1997] NSWCA 48

BRAND and ANOR v BARDON SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL

HANDLEY, POWELL and STEIN JJA 8 April 1997, 18 July 1997

[1997] NSWCA 48

PRODUCT LIABILITY — Negligence, respondent peculiarly sensitive, whether damage was foreseeable; contract — whether defendants were party to the contract for sale of goods, alleged breaches of s19(2) and s18 of Sale of Goods Act 1923

PRODUCT LIABILITY — contract — whether appellants were party to contract for the sale of goods — alleged breach of warranties implied by s18, s19 Sale of Goods Act 1993. Estoppel — whether defendants estopped from denying that they were proper defendants. Negligence — whether appellants owed a duty of care to the respondent and whether damage to the respondent, a person particularly sensitive to the product, was foreseeable.

Facts: Respondent purchased a moisturising cream for sensitive skin by telephone. She suffered blistering and scarring following application of the cream. Trial judge held that the defendants were the importers and distributors of the product. Trial judge found negligence and awarded damages on that basis and found breach of s19(2) Sale of Goods Act.

On appeal:

(1) Whether the appellants were party to the contract for the sale of goods.

(2) If yes to (1), whether there was a breach of the warranties implied by the Sale of Goods Act.

(3) Whether the appellants breached any duty of care to the respondent, and whether the respondent's damage was reasonably foreseeable.

Held (by Handley and Stein JJA; Powell JA dissenting):

(1) The appellants held out that the business of which they were proprietors was contracting for the sale of the product, and accordingly were party to the contract for sale of goods.

(2) The appellants were estopped from asserting that they were not the proper defendants to the proceedings.