What is a product liability claim?
If you are a consumer and were injured by reason of a defect in a product you purchased or were using, you may be entitled to make a claim for the injuries sustained by you. This is what is often referred to as a product liability claim.
In Australia, a supplier or manufacturer of goods has a duty to ensure that the products it produces or supplies are not faulty and safe to use.
Pursuant to Section 4 of the Australian Consumer Law, there are certain guarantees statutorily imposed upon the supplier or manufacturer. These guarantees include that the products supplied or manufactured are:
- Fit for all the purposes for which goods of that kind are commonly supplied;
- Acceptable in appearance and finish;
- Free from defects;
- Safe; and
If the supplier or manufacturer fails to comply with the consumer guarantees as provided for under the legislation, and that by reason of same the consumer suffers injury loss or damage, the consumer may seek damages to compensate them.
In the event that a consumer suffers injury, loss or damage by reason of a defective product, and it is established that there has been an infringement of the guarantees provided for above, the entitlement to claim damages for the injury, loss or damage suffered is specifically provided for in Section 138 of the Australian Consumer Law.
In addition to the above, the manufacturer or supplier who provides the product would also owe a duty of care under the common law. The common law provides that any such manufacturer or supplier must take all reasonable precautions available to ensure that goods provided are fit for their intended purpose and free of defect. If it is established, on the balance of probabilities, that there has been a breach of this duty of care, then the manufacturer or supplier will be held liable for the injury, loss or damage occasioned as a result of that breach of duty.
However, making a product liability claim can be challenging.
One of the difficulties that may be faced is ascertaining the identity of the manufacturer of the product, particularly if the product was manufactured overseas. In such circumstances, a written notice can be provided to the supplier to request details as to the identity of the manufacturer. If the supplier does not respond with 30 days, the supplier is deemed to be the manufacturer and action may then be brought against the supplier directly.
The determination as to whether the goods are defective and/or not fit for purpose may require expert evidence. Generally speaking, goods have to undergo stringent testing and compliance with relevant government regulations and protocols before becoming available for sale. That in itself may establish that the goods were in fact free of defect and fit for purpose. This assumption however can be rebutted with expert evidence.
Brydens Lawyers are experts in the prosecution of all personal injury claims, including claims for injuries arising from use of defective products. Strict time limits apply with respect to the prosecution of all personal injury claims, so do not delay. Contact Brydens Lawyers on 1800 848 848 or brydens.com.au.
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