When good gifts go bad: Faulty products without receipts

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.

Your rights

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. 

No receipt?

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
  • dont return the faulty product to the retailer or manufacturer.

Setting expectations

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 Blackburns Melbourne office.

TOPIC: Public safety
RELATED LEGAL SERVICES: Public liability

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Trang van Heugten

Maurice Blackburn Melbourne
Trang van Heugten is a Senior Associate who practices exclusively in the Public Liability and Faulty Products department at Maurice Blackburn, based in Melbourne. She is also a Law Institute of Victoria Personal Injury Accredited Specialist who has a particular interest in bringing claims for the survivors of childhood sexual abuse. Trang is specially trained in trauma informed practice which ensures she works with clients to access justice in a way that recognises the complex trauma they have suffered. Trang has substantial experience across a wide range of public liability and faulty product matters, including successfully representing people who have been injured after landlords, councils, schools, shops, manufacturers and other businesses and organisations failed to take reasonable care to members of the public. Some of Trang's successful cases include a: tenant who fell five metres to the ground when the balustrade of his rented property collapsed disabled man who sustained severe burns to over half of his body when he was trapped in a shower facility of a nursing home homeowner who free fell several metres in the defective lift which was installed in her home shopper who was almost crushed by a defective shopping trolley while travelling on an travelator, and mum who sustained serious back injuries when she was crushed under the weight of unsecured soccer goal posts Trang also has substantial experience across a wide range of commercial and civil litigation.                 Before joining the Public Liability department, Trang worked as a senior lawyer for Maurice Blackburn Commercial, assisting in the conduct of a large Supreme Court action between pharmaceutical corporations. Trang was the Associate to Mr Justice Peter Buchanan of the Victorian Court of Appeal from 2000 to 2002 and worked as a lawyer at another leading law firm from 2002 to 2008. Trang graduated from La Trobe University with a Bachelor of Laws (Hons) and was admitted to practice in 1999. She also holds a Bachelor of Science (Psychology) from the University of Melbourne. Trang is a member of the Law Institute of Victoria. She speaks fluent Vietnamese and is actively involved in the Vietnamese community. ...

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