If a faulty product has caused an injury, you may be entitled to make a public liability claim on a number of grounds:
- negligence by the manufacturer
- a breach of statutory duty, which are the obligations an organisation must follow by law
- a breach of the Australian Consumer Law (ACL), the national law for fair trading and consumer protection.
Most product-related public liability cases involve allegations of both negligence and breaches of the consumer law.
In making a claim, you must show that the manufacturer was in some way negligent and that this resulted in loss or damage to you. A manufacturer will be found negligent if:
- they could reasonably foresee the risk
- that risk was ‘not insignificant’, and
- under the circumstances, a reasonable person in the manufacturer’s position would have taken the relevant precautions.
You must be able to show that you’ve suffered a permanent, significant physical injury or impairment. If you don’t satisfy the legal threshold, you may be unable to seek compensation.
What is considered a 'safety defect'?
A product is considered to be defective if its safety is not ‘what the community is generally entitled to expect’. In looking at whether a product is defective, a court might take into account:
- how and for what purpose the manufacturer has marketed the product
- the product’s packaging
- the use of any mark in relation to the product
- instructions for, or warnings about, the assembly and use of the product
- what consumers might expect to do with the product
- when the product was supplied.
Under the ACL, manufacturers are strictly liable to consumers for injuries or property damage suffered as a result of a defective product.
There's good news for those who've received faulty goods as a gift: you don’t need to be the purchaser of the goods to bring a claim under the ACL. Anyone can claim for personal injury or damage to private property that is the result of the product’s safety defect.
It may be difficult to bring a claim under common law if you don’t have the product receipt, but not impossible. You may still be able to prove you were a ‘consumer’ or a person who acquired the faulty product by showing a serial number linked with the purchase, proof of payment such as a credit card statement of the person who purchased the gift, or by asking the store to check its records for the purchase details.
Making a claim: first steps
If you decide to make a public liability claim for personal injury or property damage as the result of a faulty product, you should take the following steps before consulting a solicitor:
- immediately seek medical treatment and let those who treat you know how you were injured
- keep any relevant documents, including records and receipts of all your medical and related expenses, as well as records of the dates and types of treatment you have
- keep records of any wages or income you’ve lost because you were unable to work due to injury
- take date-stamped photographs of your injuries
- take date-stamped photographs of the incident site and/or the product that caused your injury, and
- don’t return the faulty product to the retailer or manufacturer.
If you do pursue a public liability claim, prepare to be patient: finalising a claim can take from one to five years, depending on the complexity of your case. Generally, adults have three years from the date of the injury to bring a claim.
Trang van Heugten is a senior associate in Maurice Blackburn’s Melbourne office.