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Product Liability Investigations
The product liability provisions of the Trade Practices Act allow persons who
suffer injury or loss as the result of a defective product to take legal action
for compensation against the supplier of that product. These provisions
apply to goods supplied after 9 July 1992.
When is a product defective?
A product is defective if it does not provide the level of safety that the
community generally is entitled to expect. The level of safety will vary from
case to case and it is ultimately for the court to determine whether a product
is defective. However, there are various factors the court will take into
account when making its determination, including:
How and why the product has been marketed
The use of any mark in relation to it Instructions for, or warnings about,
doing or refraining from Doing anything with or in relation to the product.
What might reasonably be expected to be done with it the time when it was
supplied.
Products that are older and subject to more use would not necessarily be
expected to be as safe as brand new ones.
Similarly, products would not necessarily be defective simply because the
safety of later models had been improved.
Who may be liable for supplying a defective product?
The product liability provisions of the Trade Practices Act will generally apply
to a company that:
. Manufactured the product
. Imported the product
Sold 'own brand' goods manufactured for it under licence.
The retailer may sometimes be deemed to be the manufacturer of the product
and hence liable.
Who can bring an action for compensation? What type of loss may be
compensated?
The Trade Practices Act allows anyone to claim for personal injury or
damage to private property (including land or buildings) resulting from a
defect in the product. Dependants of a person injured or killed by a defect in
goods can also claim for the losses they suffer as a result.
Damage to commercial property is not covered nor is any loss arising from a
business relationship, such as loss of profits.
The Act also excludes losses for which a claim might be made for workers
compensation and losses regulated by international agreements.
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