Concrete Constructions (NSW) Pty Ltd v Nelson (1990) 169 CLR 594
Misleading conduct; meaning of "in trade or commerce".
Facts: Concrete Constructions was a company engaged in constructing a building in Sydney. The foreman of the company gave misleading information to Nelson, an employee of Concrete Constructions who was working on the site, about how a grate at the entrance of a shaft was secured. As a result of this wrong information, Nelson fell down the shaft and was injured. Nelson wished to claim damages from Concrete Constructions for a breach of s 52 of the Trade Practices Act 1974 (Cth). He argued that the company had, through its foreman, engaged in misleading conduct in trade or commerce.
Issue: Did the act of giving misleading information to the employee take place 'in trade or commerce'.
Decision: Giving the information was not part of the company's commercial or trading activities; it was only something incidental to those activities. Accordingly, the conduct in question did not take place 'in trade or commerce'.
Reason: The phrase 'in trade or commerce' can be interpreted narrowly, so as to include only conduct which is itself an aspect or element of activities or transactions which, of their nature, bear a trading or commercial character; or more widely so as to include activities that are merely incidental to the carrying on of an overall trading or commercial business. In the narrower sense, driving a truck to deliver goods to a buyer would be conduct 'in trade or commerce', whereas the failure of the driver of the truck to give a correct hand signal while driving would not be. The wider interpretation goes beyond what was intended by the legislature.
Note: Although this case concerns s 52 of the Trade Practices Act it continues to be relevant with regard to the application and interpretation of s 18 of the Australian Consumer Law.