Case study: David Jones Ltd v Willis (1934) 52 CLR pages 110 till 133. This case has created controversy among the Courts and such justices as Rich, Starke and Dixon. They all have different but similar decisions, relating to The Sales of Goods Act 1923 (C! |th).
Summary This case deals with the defendant David Jones Ltd versus Willis the plaintiff, on the appeal from the supreme court of New South Wales. The case is related to The Sales of Goods Act 1923 (C! |th).
In the case the plaintiff purchased a pair of shoes from the defendant David Jones, a retail distributor of footwear not manufactured by it. On the third occasion of wearing the shoes the heel came off while the plaintiff was walking down the stairs. She fell over and suffered injuries. She sued for damages.
The court held that there was a breach of the conditions of merchantable quality and fitness for purpose. The judge granted a new trial limited to question of damages. The appeal by the defendant was dismissed by the Full Court of the Supreme Court. Special leave to appeal from the judgment of the Full Court was granted to the defendant by the High Court on question whether there was evidence of implied condition or warranty within the meaning of sec 19 (1) or (2) of the sales of Goods Act 1923. The appeal then came on for hearing. The Sales of Goods Act 1923 (C! |th) “X Codifies the common law, with some modifications.” X In this situation the contact was for a sale of goods.
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As we can assume that the pair of shoes purchased from the retailer David Jones cost greater than $20 and the plaintiff had evidence in writing such as a receipt. “X It is a Sales of goods if! SS the test is whether the primary objective of the contract is to transfer ownership of goods!” in this case that was exactly the situation. Contract- Section 6 defines a contract for the sale of goods as, ! SSA contract whereby the seller transfers or agrees to transfer the property in goods to the buyer for money consideration called the price. !” (Carvan, Miles C, Dowler W, 2003, 423).
The defendant David Jones transferred a pair of shoes (goods), with the plaintiff for a certain price. As there was an exchange of property with money The Sales of Goods Act applies.
The pair of shoes the plaintiff purchased is the! SSGoods!” , as they are tangible movable property. The goods were classified as ascertained or specific goods, as the plaintiff choose the shoes at the time of the contract. As the sale was a consumer sale, the parties cannot exclude or restrict the operation of section 18; correspondence with description; 19 merchantable quality and fitness for purpose and 20 correspondence with sample. Under The Sales of Goods Act the following warranties and conditions apply to the case:” X An implied condition of correspondence with description. (Legislation, N. S.
W, section 18) A sale by description is an implied condition that the goods must correspond with their description. The goods are of a description which it is in the course of the seller! |s business to supply, whether he is the manufacturer or not. Even where goods are sold by brand name, or where the buyer is buying things on display, there can be a sale by description. The goods are in the course of the sellers business to sell as David Jones has a shoe department, with trained staff to assist their customers in purchasing shoes. Even though they are not the manufacture of the shoes, the legislation still applies. Its is not known if the shoes were of brand name, however David Jones is known to sell shoes of expensive known brand names, and if the sales representative picked the shoes from the display shelve, it would have been classified as a sales by description.
However according to Justice Rich, it is not a sale by description as the term the plaintiff used! SSwalking shoes!” is too wide and general. Justice Starke mentions it is a question for the jury to find evidence if it was a sales by description. On the other hand Justice Dixon, mentions the shoes bought were sales by description and Dixon believes that the jury was right to find the plaintiff relied upon the description of the goods. Overall I believe the sale was a sale by description as the goods were ascertained or specified and the plaintiff explained to the sales representative the purpose she wanted the shoes, ! SSwalking shoes!” that were comfortable and that covered the bunion on her foot. Therefore as the plaintiff described the shoes and the purpose for them to be worn, they were sales by description. “X An implied condition of fitness for a particular purpose.
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(N. S. W Legislation, section 19{1}) Occurs were the buyer by implication makes known to the seller the particular purpose for which the goods are required so as to show that the buyer relies on the seller! |s skill or judgment. As already mentioned the goods are in the course of the sellers business to sell. The plaintiff stated in evidence that she told the defendant! |s saleswomen she wanted! SSwalking shoes!” , that she had a bunion on her foot and wanted a comfortable pair of shoes.
The plaintiff relied on the seller! |s skill and judgment to purchase the particular pair of shoes, from a supposably trained sales representative who works in the shoe department. The legislation! SS requires that the goods must be reasonably fit for the purpose for which they were sold. !” The shoes were not fit for the purpose they were sold. When a person who purchases shoes from a well known retail store such as David Jones they would at least expect them to be able to wear them more than three time without the heel becoming detached, they should be able to carry out their normal duty of being worn, to simply walk. Rich mentions it is common knowledge that department stores such as David Jones are not the manufacturers and would not have expert knowledge about the products they sell, however the buyer may rely upon the shopkeeper to stock goods manufactured by factories with reputation for honest and careful work. Furthermore Rich states! SSs he did make known to the defendants saleswoman that she required the goods for the purpose of outdoor walking so as to show she relied on the defendants skill or judgment!” .
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This can not be convincing as he first mentions the plaintiff requested! SSwalking shoes!” and in the actual case there is no sign of the plaintiff mentioning! SS outdoor shoes!” . Further more Rich mentions that the plaintiff inspected shoes and tried them on. This proves that the plaintiff would have heard the sales representative! |s advice, but would have not relied on her, as the plaintiff examined the shoes herself. Looking at it from Starke! |s point of view, he explains a particular purpose as! SSa definite purpose expressly or implied communicated to the seller, for which the buyer buys the goods!” . The plaintiff did specifically let the sales representative know the purpose for the shoes.
Even if! SSwalking shoes!” was not accepted, she implied that she wanted comfortable shoes that would cover the bunion on her foot. The plaintiff relied on the seller! |s skill of judgment for that particular purpose. She did admit at the time that the shoes were comfortable and covered the bunion. Therefore the shoes were fit for that particular purpose. It seems that Starke believes the implied condition of fitness for a particular purpose has not been breached, however Starke as well as Dixon mention that the jury should determine if the definite purpose was known to the seller and if the shoes were fit for that purpose. However Dixon also mentions! SS particular!” means specific, example: for walking.
There was no disclosure of any particular purpose for which the shoes were required and no indication by the respondent that she relied on the skill or judgment of the appellant for anything except the selection of a pair of shoes which would meet the disability from which she suffered. The evidence shows that the particular purpose was to cover the defect in the respondent! |s foot. There is not evidence of a warranty that the shoes supplied were! SSwalking!” shoes. But if Dixon believes! SSfor walking!” is acceptable for a particular purpose, I believe! SSwalking shoes!” is close enough. Even if David Jones had not promised the plaintiff that the shoes were not fit for the purpose of walking the court held that the store had breached its implied condition that the shoes were fit for the purpose as they were not fit for the main purpose which is walking. After weighing up the alternatives it can be seen that the shoes were not fit for the main purpose of shoes, ! SSfor walking!” , which leads to an implied condition of fitness for a particular purpose has been breech ed.” X An implied condition of merchantable quality (N.
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S. W Legislation, section 19 {2}) Where the goods are bought by description from the seller who deals in goods of that description whether he be the manufacturer or not. The seller must be a seller who deals in goods of that description. It has previously been mentioned that the shoes were bought by description, from a seller who deals in goods of that description and that David Jones is not the manufacturer, however it is beside the point they are still responsible for the quality of shoes they sell.
Section 64 (3) provides a definition of merchantable quality for a consumer sale. (, Miles C, Dowler W, 2003, 437)! SSGoods are not of merchantable quality if they are not as fit for the purpose or purposes for which goods of that kind are commonly bought as is reasonable to expect having regard to the price, to any description applied to them by the seller and to all other circumstances. !” In relation to David Jones, the shoes are not fit for the purpose, the shoes are meant to be shoes of good quality as people! |s perspective of the store has always been high. They sell expensive shoes and as a result should maintain high quality shoes.
Evidence was given, which the Jury accepted that the shoes were worn without any breach or violence, fastened on with an insufficient number of nails that were attached where there was compressed paper and not leather. That is the reason why the heel became detached on the third time of wearing them. This proves the shoes were not fit for the purpose of why they were made. Further more! SSgoods that have more than one purpose can still be of merchantable quality if they are fit for one of those purposes. Goods may also be of merchantable quality but still not suitable for a particular purpose!” the shoes in this case might have more than one purpose if other than to be walked in, they were to last for maybe a year or two, or be comfortable, however the shoes were not fit for any purpose as the heel became detached from the third occasion of wearing them, what purpose could they have been fit for? To cover the bunion on someone! |s foot, manufactures will not makes shoes for the particular purpose of covering a bunion. They did not last long, could not be walked in, and how could they be comfortable if the heel came of on the third occasion of wearing them.
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The plaintiff did not even get a chance to feel comfortable in them. Instead the shoes should be classified as a hazard. They should not have been stocked on the David Jones shelves if they were damaged or of such low quality. Even if David Jones had not promised the plaintiff anything about the quality of the shoes, the court held that the store had breech ed its implied condition of merchantable quality as the store should perform quality audits to eliminate the damaged goods, and not stock or order goods of such low quality or that are faulty. However putting aside what the court decided it is stated that! SS provide that the buyer has examined the goods there shall be no implied condition as regards defects which such examination ought to have revealed. !” This means; as the goods are classified as specific or ascertained goods, the plaintiff should have examined the shoes at the time of purchase to see whether they were damaged or not.
Therefore there shall be no implied condition of merchantable quality. Even though Rich states that the plaintiff inspected the shoes and tried them on, which indicates she examined them, the defect of the shoes could not have been examined at the time of the purchase. Suppose that the seller had acknowledged the store took no responsibility for the goods in which they sold, they will have no responsibility for the condition of the heels on the shoe. At common law, the seller would probably have excluded the liability; it gave the buyer clear notice before the sale of the Sale of Goods Acts, and the seller could not exclude the implied conditions of merchantable quality and fitness for purpose. This usually is seen in small sole trader businesses. They might have a sign saying! SS no exchange or refund!” and a few lines stating they have no responsibility for the quality of the product.
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However the retail department store David Jones does not have that acknowledgement today and it is very unlikely that they would have had that in back 1934 when the incident took place. Justice Rich stated that the implied condition is shown to be broken if the shoes fall to pieces, not as the result of wear, but because they were never fit to be worn. Dixon and Starke believe the implied condition of merchantable quality was broken and it was not necessary to prove there was an implied condition of fitness of purpose that was broken under section 19 (1) of the act. Overall my decision is obviously the favored decision which holds stronger arguments that the shoes do not hold good quality and the implied condition of merchantable quality had been broken.
Conclusion Overall Rich believes that the appeal granted to the defendant by the High Court on question whether there was evidence of implied condition or warranty, within the meaning of sec 19 (1) or (2) of the sales of Goods Act 1923 should be dismissed. Dixon even more believes the appeal should be dismissed with costs. On the other hand Starke believes the appeal should be allowed and the trial should not be limited to damages. I agree with Justices Rich and Dixon as I believe; enough has been heard from section 19 (1) and (2), I do not believe the jury can further investigate the matter of particular purpose as it seems the parties have no more to say whether the plaintiff made known to the seller the particular purpose, or whether the sales representative knew the particular purpose, it does not seem the parties are going to say something new, even if they were not telling the truth.
And it seems the merchantable quality section has been fairly investigated and enough evidence has been obtained to come to a conclusion. In conclusion the sale between David Jones and Mrs. May Elisabeth Willis was a sale by description, it had breech ed the implied condition of fitness for a particular purpose along with the implied condition of merchantable quality. Therefore I find the defendant David Jones guilty of sections 19 (1)! SSAn implied condition of fitness for a particular purpose and 19 (2)! SSAn implied condition of merchantable quality!” as it sold faulty stock to the defendant Mrs.
May Elisabeth Willis which caused her to fall down the stairs and brake her leg. The defendant can be sued for damages. I therefore support the trial limited to question of damages. Bibliography “X Carvan, Miles C, Dowler W, A Guide to Business Law 15 th edition.
2003 Sydney: Law book Co.” X Case study: David Jones Ltd v Willis (1934) 52 CLR pages 110 till 133.
