Pritchard v Racecage Pty Ltd
72 FCR 2031997 - 0204B - FCA; No. DG 4 of 1996
(Judgment by: Spender J)
Between: Pritchard
And: Racecage Pty Ltd
Judges:
Spender JOlney J
Branson J
Subject References:
trade practices
consumer protection
misleading and deceptive conduct
unconscionable conduct
application of Trade Practices Act 1974 (Cth) to claim in connection with death of person in motor vehicle accident
causation
whether death caused by misleading, deceptive or unconscionable conduct
whether s 4K of the Act permits recovery of damages solely for personal injury
whether causes of action under Parts IVA and V of the Act survive death of potential claimant
whether relatives of a deceased prevented from bringing actions under the Act because of rule in Baker v Bolton
whether relatives of deceased suffered loss within meaning of ss 82 and 87 of the Act
statutes
Territory legislation
effect of Trade Practices Act 1974 (Cth) on Motor Accidents (Compensation) Act 1979 (NT)
Legislative References:
Judiciary Act 1903 (Cth) - s 79; s 80
Trade Practices Act 1974 (Cth) - s 4K; s 51AA; s 52; s 82; s 87
Northern Territory (Self-Government) Act 1978 (Cth) - s 7(2)(a); s 35
Motor Vehicles Act 1949 (NT) - the Act
Law Reform (Miscellaneous Provisions) Act 1956 (NT) - the Act
Compensation (Fatal Injuries) Act 1974 (NT) - s 7(1); s 5(2)
Motor Accidents (Compensation) Act 1979 (NT) - s 4; s 5; s 6; s 40A
Northern Territory (Self-Government) Regulations - the Regulations
Case References:
Baker v Bolton - (1808) 1 Camp 493; 170 ER 1033
Brown & Anor v Jam Factory Pty Ltd & Anor - (1981) 53 FLR 340
Crofter Hand Woven Harris Tweed Co v Veitch & Anor - [1942] AC 435
Concrete Constructions (NSW) Pty Limited v Nelson - (1990) 169 CLR 594
Brabazon v Western Mail Ltd - (1985) 58 ALR 712
Aristotite v Gladstone Park Shopping Centre Pty Ltd - (1983) 71 FLR 276
Steiner v Magic Carpet Tours Pty Ltd - (1984) ATPR 40-490
Flamingo Park Pty Ltd v Dolly Dolly Creation Pty Ltd & Ors - (1986) 65 ALR 500
Baxter & Anor v British Airways PLC & Anor - (1988) 82 ALR 298
Zoneff v Elcom Credit Union Ltd - (1990) 94 ALR 445
Park & Others v Allied Mortgage Corporation Limited & Ors - (1993) ATPR 46-105
National Mutual Property Services (Australia) Pty Ltd & Ors v Citibank Savings Limited & Ors (No 1) - (1995) 132 ALR 514
R v Federal Court of Australia; ex parte Pilkington A.C.I. (Operations) Pty Ltd - (1978) 142 CLR 113
Parkdale Custom Built Furniture Pty Ltd v Puxu Pty Ltd - (1982) 149 CLR 191
Wardley Australia Ltd v Western Australia - (1992) 175 CLR 514
March v Stramare (E. & M.H.) Pty Ltd - (1991) 171 CLR 506
Commercial Bank of Australia Ltd v Amadio - (1983) 151 CLR 447
Murex Diagnostics Australia Pty Ltd v Chiron Corporation - (1995) 128 ALR 525
General Steel Industries Ltd v Commissioner for Railways - (1964) 112 CLR 125
Walton v Gardiner - (1993) 177 CLR 378
Blomley v Ryan - (1956) 99 CLR 362
Hospital Products Limited v United States Surgical Corporation & Ors - (1984) 156 CLR 41
Breen v Williams - (1994) 35 NSWLR 522
Jenyns v Public Curator (Q) - (1952) 90 CLR 113
Capro Group Pty Ltd v Janbrett Consultants Pty Ltd - (1994) ATPR 41-298
Judgment date: 4 February 1997
Darwin
Judgment by:
Spender J
I have had the great advantage, in the difficult circumstances of this case, of reading in draft form the reasons for judgment of Branson J.
I agree with those reasons and with the orders, including the answers to the questions considered by the learned primary judge, which her Honour proposes.
In deference to the fact that I am, in so agreeing, differing from the conclusions of the learned primary judge, I wish to add the following few remarks.
The case as pleaded by the appellant eschews reliance on any negligent driving by the driver of the motor vehicle involved in the accident leading to Mr Pritchard's death. The question of whether the alleged misleading or deceptive conduct can be said to have "caused" the claimed loss or damage is therefore of crucial importance.
In my view, that question is arguable; it does not require the conclusion that the statutory cause of action should be struck out as disclosing no cause of action. I nonetheless express the view that I am very much less than sanguine about the ultimate prospects for the appellant.
It seems to me that the difference between my view and that of the learned primary judge flows from his conclusion:
"I am of the opinion that the death of the deceased and any losses sustained by his widow and children as a consequence of his death were 'caused' as a result of a motor vehicle accident involving a car that was driven by one of the competitors in the Rally."
His Honour later said:
"Those misstatements (assuming they were made) were not the cause of the deceased's death; his death was caused by the motor car accident and, as a consequence, the provisions of the MAC Act came into operation."
The rationale of his Honour's orders giving judgment against the applicant was:
"...
the TPA was never intended to have general application to road traffic accidents or (again generally speaking) to personal-claims arising out of such accidents."
The learned primary judge was of the view that the legislation was directed to "activities of trade, commerce, business and economic issues, including issues of loss or damage that might flow from those activities".
The learned primary judge made detailed reference to Concrete Constructions (NSW) Pty Limited v Nelson (1990) 169 CLR 594 and concluded that it was not the intention of the Commonwealth Parliament that s 52 of the Trade Practices Act 1974 ('the TPA') "would be a 'side wind' effectively preventing the States and Territories from legislating to control and contain the causes of action and the quantum of damages flowing as a consequence of motor vehicle accidents".
The judgment below reflected the considered view that s 52 of the TPA could not be relied upon where the loss and damage alleged consisted of personal injuries as the result of a motor vehicle accident, because to do so would be to grant to the Commonwealth legislation the 'side wind' effect of overriding State and Territory legislation directed at the consequence of such motor vehicle accidents.
I take a narrower view of the ratio in Concrete Constructions.
The minority (Brennan, McHugh and Toohey JJ), having regard to the heading "Consumer Protection" to Part V of the TPA, were prepared to read s 52 of the TPA as prohibiting only conduct that was misleading or deceptive of persons "in their capacity as consumers" and the conduct in question in Concrete Constructions was not of that kind.
Mason CJ, Deane, Dawson and Gaudron JJ, in a joint judgment rejected that view. The majority's decision was based on the finding that the conduct of the foreman of the employer in wrongly informing a worker about the manner in which a grate was attached to a shaft, reliance upon which had led the worker to falling to the bottom of the air-conditioning shaft while attempting to remove the grate at the entry point of the shaft and as a consequence suffering personal injuries, was not conduct "in trade or commerce" as the section required.
The learned primary judge in the present case concluded that the misleading and deceptive conduct in the present case "if proved, would constitute a series of negligent misstatements made by the respective respondents preparatory to the holding of the Rally".
The case below was conducted on the basis that there was no issue that whatever be the relevant conduct, it was conduct "in trade or commerce". That seems to me to be a live issue for trial. It was the conclusion on that question which was fatal to the worker's claim in the Concrete Constructions case.
The primary judge said that he did not consider that:
"these provisions of the TPA were intended to extend, at large, to claims for personal injuries or to claims arising as a consequence of death where the injuries or death occurred as a result of a motor vehicle accident and where there are no other circumstances in the nature of 'trade or commerce' that would attract the operation of the TPA."
However, the submissions below proceeded on the basis that the relevant conduct was conduct "in trade or commerce"; whether that be true or not is a matter for another day.
In my respectful opinion, nothing in Concrete Constructions supports the bald proposition that the TPA does not permit any claim for personal injuries arising as a consequence of death, where the death occurred as the result of a motor vehicle accident.