Recent Cases

Dwyer v Volkswagen Group Australia Pty Ltd [2023] NSWCA 211 (05 September 2023) (Gleeson, Leeming and White JJA)


CONSUMER LAW — Consumer guarantees — Supply of goods — Guarantee of acceptable quality — Australian Consumer Law (ACL), s 54 — Whether vehicles of acceptable quality to reasonable consumer — Whether vehicles not safe or free from defects given installation of airbags — Where asserted risk of rupture of airbags — Whether appellant established a physical feature of the airbags carried the inherent risk alleged — Where no materialisation of asserted risk within 15-year timeframes tested — Where merely speculative theoretical risk of rupture of airbags not within any meaningful timeframe — Whether unquantifiable risk unacceptable to reasonable consumer

CONSUMER LAW — Enforcement and remedies — Defences — Whether assumed failure to comply with guarantee of acceptable quality “only because of” act or default of another person other than manufacturer or its employees or agents — Where third party supplier of airbags not an agent of the manufacturer — Meaning of “manufacturer” — Whether acts of “manufacturer” in choosing third party supplier, installing airbags or releasing vehicles in that state for supply disentitled the manufacturer to defence — ACL, s 271(2)

CONSUMER LAW — Enforcement and remedies — Action by consumer for damages under ACL, s 271(1) — Assessment of damages under ACL, s 272(1) — Where common ground that time for assessing damages for any reduction in value of goods is time of supply — Whether subsequent events which illuminate true value of goods at time of supply should be taken into account in damages assessment — Where airbag replaced at no cost — Whether replacement of airbag should be taken into account in damages assessment assuming breach of consumer guarantee

CIVIL PROCEDURE — Representative proceedings — New points on appeal — Representative party failed to plead new damages claims on behalf of group members — Whether common questions should be amended on appeal — Where no challenge to orders specifying common questions for determination at trial — Where no application to amend common questions at trial or on appeal — Effect of statutory estoppel on issues raised by common questions — Civil Procedure Act 2005 (NSW), s 179