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Product Liability

From time to time people suffer injury as a result of a defective product.

It could be a contaminated oyster for example. Indeed court cases claiming compensation where someone was injured really started with the famous case of Donoghue versus Stevenson, which was a 1932 decision of the English House of Lords involving someone who consumed a bottle of soft drink containing a snail.

The same test of negligence applies in product liability cases. The question is whether the person who grew the oyster (or allowed contaminated water into the area where the oyster grew), the person who sold you the goods or the person who manufactured the goods, acted in the way that a reasonable person would have acted carrying out that role.

Who do you sue?

If you suffer injury as a result of goods which you have purchased, you have a number of choices. You can sue the person or company which sold you the goods on the basis of negligence. Or you can sue the manufacturer on the basis of negligence.

If you want to sue a company then you can rely upon the Commonwealth Trade Practices Act which gives a lot of rights to consumers. If you want to sue an individual then there are a lot of statutory rights on which you can rely under state legislation. In NSW you would rely on the Fair Trading Act.

If you want to sue the manufacturer you can give a notice to the company which sold you the goods requiring it to tell you the name of the company from whom it purchased the goods. If you don't get a response within a fixed period, the company which sold you the goods is deemed to be the manufacturer. Under the Trade Practices Act there are a number of requirements of manufacturers.

However you don't necessarily have to prove negligence. If you purchased the defective goods then you may well be able to rely on warranties which are implied in NSW by the Sale of Goods Act. For example, that Act says that goods which are sold must be fit for the purpose for which they are intended. A contaminated oyster would hardly meet that test. Again there are similar acts in other states.

Once again, depending on the particular claim which is being made, time limits vary considerably. One particular time limit which often catches people is that in most cases, there is a strict three year time limit for making a claim under the Trade Practices Act and the court has no power to extend that time limit.

A class-action

Sometimes the only practicable way to pursue a claim for product liability is by means of a class-action. A class-action is one where the person claiming is not a named person but rather a class of people. For example it would have been too expensive for someone who was sick for a week after eating a contaminated oyster to mount a case against the oyster industry and the Great Lakes Shire Council which was responsible for septic effluent which was claimed to have entered the Great Lakes System affecting the oysters. So a claim was pursued on behalf of all of those people who were made sick by the contaminated oysters.





To pursue a class-action the normal procedure is that a lawyer takes instructions from no less than seven people who have been affected and then applies to the Federal Court of Australia for permission to pursue a class-action by everyone affected by the defective product. The claims must arise out of the same or similar circumstances and must involve a substantial common issue of law or fact. For example, if a large group of people eat contaminated oysters then their claims arise out of the same circumstances and they will all have to prove fault on the part of the people who sold or were responsible for the contamination of the oysters. So they are and were eligible to pursue a class-action.

If the court gives permission it will require the lawyers to place advertisements in the media inviting anyone affected to opt out of the compensation claim. If you have been affected by the defective product and you don't opt out then you are automatically included within the compensation claim. If the compensation claim is settled then your rights are also settled, even if you don't know about the class-action.

Our expertise

In addition to having lawyers who have a lot of experience in pursuing compensation claims generally, we also have lawyers who have particular experience in pursuing claims for product liability which involve their own particular tricks of the trade.

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