Home > News > Can a boxer pup (or pets generally) be defective?: Blanchard v McDowall

Can a boxer pup (or pets generally) be defective?: Blanchard v McDowall

Spread the love

By Alicia Hill, Principal and Matthew Deetlefs, Law Clerk

Whilst the purchase of pets is often an exciting time, like with any purchase, you may not always get what you bargained for. Australian law still however provides some protections in these circumstances, as demonstrated by the Victorian Civil and Administrative Tribunal (VCAT) decision of Blanchard v McDowall (Civil Claims) [2021] VCAT 757.

Background:

On 10 April 2020, the Blanchards purchased and brought home a boxer pup from McDowall for $1,200.

Then, on 14 April 2020 the pup was diagnosed by a veterinarian with circovirus that had caused a condition called cryptosporidium, which the veterinarian noted had likely been an issue since before the Blanchards purchased the pup.

The law treats domestic animals as goods.

Accordingly, the Blanchards were able to claim that the pup was not of acceptable quality under section 54 of the Australian Consumer Law.

The Blanchards sought from McDowall:

  • A refund of the purchase price;
  • Compensation for the veterinary expenses; and
  • Future ongoing costs for keeping the pup in good health.

Conclusion:

VCAT found that:

  • the Blanchards were not entitled to a refund of the purchase price as they did not return the pup and demand a refund from McDowall, rather, they treated the pup for its illness.
  • the veterinary expenses were however recoverable with the exception of castration.

VCAT found it difficult to calculate future ongoing costs for the life expectancy of the pup as “it is possible that by misadventure the pup might die tomorrow”. The Blanchards were therefore only awarded the cost of probiotics for 3 months in this regard.

Take-aways:

It is important to remember that pets (or domestic animals) are still considered goods under Australian law. The provisions of the Australian Consumer Law therefore apply.

When selling pets, you must be careful not to breach these requirements, including misleading or deceiving the purchasers or providing an animal which is not of acceptable quality.

Similarly when purchasing a pet be aware that you may have recourse to the Australian Consumer Law if there is an underlying issue or discrepancy between what you purchased and what you are provided. However you also need to identify what your remedies are and what you need to do to access these to avoid disappointment if forced to take action in VCAT about the transaction.

If you have any queries about any of the matters raised by this case, then please contact Alicia Hill on (03) 8540 0292 or alicia.hill@mst.com.au