Contract; contents; terms implied by legislation; sale of goods; implied condition requiring delivery of goods of merchantable quality.
Facts: Willis went to the shoe department in the David Jones store and said she wished to see some shoes. She said she wanted comfortable walking shoes. She inspected two or three pairs, tried on one pair, and decided to buy them. The third time she wore them, the heel of one shoe came off as she was walking down some steps. As a result of this, Willis fell and broke her leg. Willis sued David Jones for damages (including her injuries) on the basis of breach of contract.
Issue: Was it a term of the contract that the shoes be of merchantable quality, and were the shoes supplied merchantable or not?
Decision: In the circumstances, it was a term of the contract the shoes be of merchantable quality. Whether or not the shoes supplied were merchantable was a question of fact for a jury to decide. Here, the shoes were found to be not of merchantable quality.
Reason: Starke J said (at 123):
"The buyer has 'a right to expect, not a perfect article, but an article which would be saleable in the market' under that description. Goods are not of 'merchantable quality' if, in the form in which they are tendered, they are of no use for any purpose for which such goods are normally used, and hence are not saleable under that description."
McTiernan J applied the same test as Starke J. Dixon J restated the test he laid down in Australian Knitting Mills Ltd v Grant (1933) 50 CLR 387 and said that, in his view, this is not a different test. See also George Wills & Co Ltd v Davids Pty Ltd (1957) 98 CLR 77.