The ‘Australian Consumer Law’, (‘ACL’) which came into force on 1 January 2011 is the law governing consumer protection and fair trading in Australia. It also provides for a scheme of compensation allowing people to claim compensation in the event they suffer from an injury because of a safety defect with a product.
It replaces a number of inconsistent State laws and now provides for a single governing law that deals with consumer warranties, standards and guarantees intended to ensure that goods made available for sale in Australia are safe and meet relevant standards.
Typical types of defective product cases
Some recent examples of defective products leading to legal action include:
- A claim involving a young boy suffering from permanent vision loss after a resistance band attached to a rubber exercise ball unexpectedly detached and hit him in the eye;
- A claim involving a young girl who suffered third degree burns to 60% of her body when a ‘mood flame’ candle operated by liquid fuel unexpectedly exploded;
- A claim involving a young man suffering injuries to his neck, back and chest due to an airbag failing to deploy when his motor vehicle was involved in an accident;
- A claim involving a young boy who suffered a finger amputation injury when his hand became caught in a thin space between the support bar and the top of a slide at a local community playground due to the playground failing to meet relevant safety standards;
- A number of claims involving adults and children suffering serious burns to their face, chest and arms while using the ‘Thermomix’ kitchen appliance which exploded while in use causing hot food stuffs to spray over the victims.
In what situations can a claim be made under the ACL for injuries sustained due to faulty or defective products?
Grounds for a claim against a manufacturer or importer of a faulty product include situations where a person experiences loss or damage as a result of injuries sustained because of a safety defect within that product.
Further, under the ACL, goods purchased by consumers must be of an acceptable quality, meaning that they are:
- Fit for all of the purposes for which goods of that kind are supplied; and
- acceptable in appearance and finish; and
- free from defects; and
- safe; and
Broadly speaking, goods will be considered to be of unacceptable quality or as having a safety defect if they are not as safe as persons generally are entitled to expect from such a product. The test is objective and based on community knowledge and expectations. Goods must be actually unsafe, not just of poor quality or inoperative.
Who is liable for the damage caused by a faulty or defective product?
In most cases it will be the manufacturer or importer of the product that will be held liable for any damage or injuries caused by the defective product. In some cases however, and, particularly where the relevant manufacturer cannot be identified (which is often the case for overseas manufacturers) the supplier of the product may be ‘deemed’ to be the manufacturer for the purposes of a claim, particularly if they were responsible for importing the product.
What types of compensation are available to people injured by faulty products?
The compensation available to individuals injured by faulty products includes payments for medical and related out of pocket expenses, attendant care and loss of income. And in addition, if the injury is of sufficient severity, the injured person can also claim compensation for their pain and suffering and for their loss of enjoyment of life (known as General Damages).
What should you do if someone has been injured by a faulty product?
You should encourage anyone who has been injured by an unsafe or faulty product to:
- Seek medical treatment for their injuries
- Retain the product that caused the injury and where possible, the purchase receipt and any packaging or warning labels
- Take photos of the injuries
- Keep records of medical expenses and records of any lost wages
- Report the injury to the manufacturer as soon as possible.
You can also report any injuries or incidents arising from defective products to the Australian Competition and Consumer Commission (‘ACCC’). The ACCC has the power to investigate, regulate and prosecute suspected breaches of the Australian Consumer Law and from time to time they will also order the removal of dangerous products from the market for public safety.
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