Thomas & 1 Ors v Foreshore Marine Exhaust Systems Pty Limited & 1 Ors [2005] NSWCA 451

Reported Decision : (2006) ATPR 42-100

New South Wales Court of Appeal

CITATION: Thomas & 1 Ors v Foreshore Marine Exhaust Systems Pty Limited & 1 Ors [2005] NSWCA 451

HEARING DATE(S): 21 November 2005

JUDGMENT DATE: 14 December 2005

JUDGMENT OF: Santow JA at 1; Bryson JA at 69; McClellan CJ at CL at 70

DECISION: Appeal allowed. See orders at [68].

CATCHWORDS: TORT – Negligence – Consumer protection provisions s74B and s74D of Trade Practices Act – Uncertainty as to precise cause of loss not a bar to recovery where no explanation available consistent with absence of negligence – Standard of proof based on balance of probability not higher standard – Expert evidence – Fitness of purpose to be measured against what it was objectively reasonable to expect – Test satisfied and also negligence found where only two explanations each consistent only with negligence – undesirability of breaking up explanation into supposedly self-contained separate elements as if these constituted an individual explanation.

LEGISLATION CITED: Trade Practices Act 1974 (Cth) s74B; s74D

Adelaide Stevedoring Co Ltd v Forst (1940) 64 CLR 538 Courtney v Medtel Pty Ltd (2003) FCA 36 Davis v Bunn (1936) 56 CLR 246 CASES CITED: Hampton Court Ltd v Crooks [1957] 97 CLR 367 Jones v Dunkel (1959) 101 CLR 298 Medtel Pty Ltd v Courtney (2003) FCASC 151

David THOMAS and John WATT (First and Second Claimants) PARTIES: FORESHORE MARINE EXHAUST SYSTEMS PTY LIMITED (ACN 071 890 063) (First Opponent) Cameron TURNER (Second Opponent)

FILE NUMBER(S): CA 40207/05

R J H DARKE, SC/ A J BULLEY (Claimants) COUNSEL: D CASPERSONN (First Opponent)