A defective product claim arises when a manufactured item is faulty usually as a result of an inadequate manufacturing processes or as a result of poor design. All manufactured goods potentially fall into this category if they are faulty and cause personal injury in normal usage when being employed in the way that was intended however the broad categories of most actual product liability compensation claims include consumer goods, food products, bio-medical devices and general manufactured goods. It is now considerably easier for a product liability solicitor to make a successful defective product claim than it was prior to enactment of the Trade Practices Act.
Consumers in Australia are protected by national product liability legislation, state & territory law and the common law of negligence & breach of contract. It used to be the case that product liability solicitor had to prove that a manufacturer had behaved negligently in order to win a claim however the law has changed and now consumer goods are deemed defective if that product does not provide the level of safety that is expected by the general community. Effectively your solicitor only needs to show that the user of a product was injured by ‘normal usage’. Explaining the technicalities involved in product liability law is not a simple task but our product liabilty solicitors have significant experience in dealing with this sort of claim and operate a jargon-free policy so that everything is explained in plain English.
Whilst the vast majority of personal injury results from negligence because of human error, there are an increasing number of solicitors product liability compensation claims arising due to bad design, poor manufacture or inadequate information relating to consumer goods. Product liability compensation claims is one of the dedicated areas of work undertaken by our personal injury solicitors who use the ‘no win no fee’ scheme. Damages that are awarded depend on the extent of the injury and any long term consequences and include all aspects of care for the future. The aim of an award is to put the inured party back into the position that they would have been had the injury not occurred and whilst money can never adequately compensate for injury it will go some way to making a more positive future for the inured party.
The law regarding a product liability claim for defective goods sold in Australia is to be found in the Trade Practices Act (TPA), in case law relating to negligence or breach of contract otherwise known as common law and in other state and federal statutes. Product liability solicitors mainly deal with the safety of consumer goods, including pharmaceutical drugs and biomedical devices rather than their unsatisfactory quality and as such most claims relate to litigation for damages for personal injury and/or claims for the value of the defective item.
Goods are defective by virtue of the Trade Practices Act (TPA) when the safety of the item is not of the standard that consumers are entitled to expect. Poor quality of manufacture or the fact that a better item comes along does not necessarily make a product defective. Courts decide this point after considering overall marketing, packaging, instructions on use and warnings of danger together with the date of sale and the purpose for which the item was sold and may have reasonably been expected to be used. Solicitors product liability claims generally fall into three basic categories as follows :-
The modern development of the law relating to product liability compensation started in 1932 following judgement in the defective product claim of Donahue v Stevenson in the United Kingdom. In that case a woman suffered food poisoning as a result of drinking a bottle of lemonade that had been bought by her friend. The court indicated that even though there was no contractual relationship between her and the shopkeeper who sold the drink to her friend she would never the less succeed in a claim for damages.
A defective product claim almost always arises as a result of four categories and in each and every case a victim who suffers harm should instruct a product liability solicitor to make a personal injury claim :-
Legislation, common law and case law are now in accord in the definition of substandard goods which are those manufactured or processed items that are below the standards of safety that consumers are entitled to expect. This definition does not however cover goods of mere poor quality and it should be noted that newer and safer versions of consumer products do not automatically make older versions of the same product unsafe.
The law now covers the situation where a manufacturer supplies goods to a consumer who subsequently sells or transfers those goods to another person whereby that buyer and any subsequent owners are now protected by statute. Damages for personal injury as a result of using defective consumer goods in the manner in which they were intended to be used can be claimed against the seller of the goods in contract or against the manufacturer in negligence. The Trade Practices Act includes a statutory code for dealing with a potential product liability claim and defective goods.
Product liability compensation can include the following items, plus interest on the award from the date of the accident to the date of payment :-
Special Damages represents items that can be calculated with accuracy including :-
General Damages represents items that must be assessed including :-
There are a numerous products that can be defective and can cause serious injuries or potentially fatal accidents. The responsibility for solicitors product liability compensation claims lies squarely with the manufacturer or importer. When things go wrong with important products, the result can sometimes be fatal and as such Australian law protects consumers and users from this harm by affording them the right to seek financial compensation if they suffer personal injury.
It is only possible for a product liability solicitor to issue legal proceedings for a product liability claim under the Trade Practices Act (TPA) against a manufacturer or importer which is a legally registered corporation. The supplier is bound under the TPA to provide information about the manufacturer upon written request. In the first instance the defendant in a product liability claim is the manufacturer or importer, however in the event that the supplier will not or cannot identify the manufacturer, the TPS deems the supplier to be in the same category as the manufacturer. The claimant under the TPA can be almost any person sustaining loss or injured by the defective goods including the owner, user or a bystander provided the goods were for personal, domestic or household use.
Manufacturers can be liable for failing to properly design a product, for failing to properly make it and for failing to give accurate or adequate information about it. Furthermore, they can be liable for not properly testing the product and for not providing adequate warnings on the product for what it should and should not be used for. This kind of warning is particularly important for medical products including pharmaceutical drugs and bio-medical devices – conflicts with other prescribed products must be properly researched and warnings published so that users can be sure that there is no risk to using the product.
A manufacturer will be liable under the Trade Practices Act (TPA) to pay compensation in a product liability claim when they supply defective goods that cause loss, damage or injury. The TPA defines a manufacturer as any corporation that actually made the goods or maintains that they made the goods or who applies their name or logo to the goods. In some circumstances the importer of foreign goods will also be included in the same category as the manufacturer. The term supply is wide ranging and includes sale, exchange, lease, hire or hire purchase.
In common with almost all legal action there are time limits for product liability claims and failure to comply may mean that the opportunity to claim compensation is lost forever. Legal action must be commenced by a product liability solicitor within 10 years of the supply of manufactured goods however legal action must also be commenced within three years of the defect becoming evident or within three years of the injury or within three years of discovery of the identity of the manufacturer. The limitation for personal injury claims also applies to actions based on breach of contract and negligence whereby the action must be settled or proceedings must have been issued in a court of law within three years of the negligent act or within three years of the discovery of the injury failing which, under normal circumstances the claim will become statute barred. There are exceptions to the three year rule for infants and the mentally incapacitated.
Our specialist team not only consists of lawyers who are experts in consumer product liability law but also includes expert scientific and medical witnesses who can provide specialist knowledge when required. We also have forensic experts who can investigate the product in question to help strengthen any legal case and provide useful information to a judge.
Our product liability solicitors work using the ‘No win No Fee’ system and you never have to pay anything to make your claim. Before you do anything else you should seek free legal advice. Defective product compensation claims is a niche area of the law which requires more than just general claims experience; our solicitors are highly qualified by virtue of the experience they bring with them having handled many complex, high value and high profile cases including some of the most infamous multi-party actions against some of the worlds largest multinational corporations both here and abroad. If you would like advice at no cost from experts just complete the contact form, email our offices or use the helpline and a solicitor will give you advice with no further obligation.LAWYER HELPLINE: ☎ 1800 339 958
The author of the substantive medical writing on this website is Dr. Christine Traxler MD whose biography can be read here