Consumers are entitled to expect that when they use a product as directed, it will not expose them to risk of serious harm. When a product or appliance does malfunction causing injuries, you may be able to bring a product liability claim for compensation.
What laws protect consumers against unsafe products?
The Australian Consumer Law (ACL) specifically enables consumers to seek compensation from product manufacturers, distributors, retailers and suppliers for personal injury or loss caused by an unsafe product.
Individuals and businesses also have common law rights to sue for product liability in respect of products or purchases not covered by the ACL.
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When can I claim compensation for an unsafe product?
If you have suffered loss or damage due to a safety defect in a product, you may be entitled to compensation from the manufacturer, importer, supplier or retailer. Such businesses usually hold insurance policies which cover them for this type of claim.
Loss or damage may include: injury, monetary loss or damage to personal property or real estate, or the death of a person you are dependent on.
A claim can be made against a manufacturer, importer, supplier or retailer by suing them in court. Alternatively, if your situation is covered by the ACL, you can make a complaint to a consumer protection body who can assist you to conciliate the matter or determine whether a class action should be brought on behalf of a group of users.
When is a product or appliance considered faulty or unsafe?
A product will be considered unsafe if it does not meet the level of safety that members of the public are entitled to expect. Usually it will be up to the court to determine whether a particular product is unsafe.
The court will take into account:
- the purpose of the product
- marketed use of the product
- packaging
- instructions and warnings
- what a reasonable person might expect the product to do
- when the product was purchased
When will compensation for an unsafe product not be available?
In some circumstances, a manufacturer, importer, supplier or retailer won’t be liable to you in respect of a product that causes you injury or loss.
This may include situations where:
- you have altered the product thereby making it unsafe;
- you have used the product in an unsafe manner and contrary to instructions;
- there was no safety defect at the time of supply;
- it was impossible to discover the safety defect at the time of manufacture because of insufficient scientific or technical knowledge being available; or
- the defect only existed because mandatory standards were complied with.
Recent product liability cases
NutriBullet
The NutriBullet blender has recently been hit with a number of product liability claims both in Australia and overseas as a result of users suffering injuries. It is alleged a number of NutriBullet appliances have exploded; containers have burst due to excessive overheating and blades have snapped or broken into food. One man was allegedly almost blinded and another user sustained facial burns.
Samsung Galaxy Note7
This ‘smart’ device has been banned from aeroplanes and recalled in numerous jurisdictions as a result of a fault with its lithium ion battery pack causing it to overheat and spontaneously combust or explode while charging. In its first month of sale, 35 cases of the devices catching on fire were reported. This faulty product has resulted in cancelled flights, torched cars, destroyed hotel rooms and house fires.
How can I find out if a product is faulty or unsafe?
If you wish to research a product’s safety before purchasing or determine whether a product you are using is safe, refer to the list of recalled products on the Product Safety Australia website.
How can I report or complain about an unsafe product?
Consumers can make a complaint directly with the business where they purchased the product or the product manufacturer. This can be done by letter, email or over the phone.
Alternatively, you can report or complaint about an unsafe product or appliance to the ACCC by filling out the Online report form or the Queensland Office of Fair Trading by printing and completing an Unsafe product or unsafe service report.
Many businesses also belong to an industry association which may have a complaints handling department that can assist you.
Time limits on product liability action
An action for product liability must be brought within 3 years from the time you become aware (or ought reasonably to have become aware) of:
- the fault or defect,
- the damage it caused, and
- the identity of the manufacturer
If you miss this deadline, you will lose the right to claim compensation.
However, depending on where your injury occurred or who you are claiming against, specific pre-court procedures may apply which may have much shorter time limits. If you miss these time limits you may lose your right to claim unless you can provide good reason for delaying and why you should be allowed to proceed with your claim.
Those aged under 18 will typically have until they are 21 to start the claims process.
In addition, getting accurate records such as CCTV or reliable witness statements for example may be difficult if starting a claim several years after the incident.
In summary, it’s best to seek expert legal advice as soon as possible to ensure you understand your rights and the required evidence to make a strong claim can be gathered. View time limit information article for more detail.
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