Bought something that caused injury?
Buying a product that fails the mandatory safety standard is not only a waste of your money, it can also pose a risk to your health and property.
We have been instructed to investigate the prospects of bringing a product liability claim against an everyday supermarket in respect of injuries sustained when using their products.
We are instructed that our client bought a heater and gas cans for everyday use. In due course of using the products, our client found the first gas can was working fine, however upon utilising the second can, it blew up igniting a fire. As a result, our client sustained burn injuries which required medical treatment. For general safety guidance see NSW’s pages on gas safety and specific gas cylinder safety, and Fair Trading’s recent enforcement on non-compliant heaters here.
To understand your rights, start with our guides on personal injury law and product liability claims in Australia. You can also contact Jameson Law for tailored advice.
In order to make a successful product liability claim, we need to establish the following:
- Liability;
- Causation; and
- Injury resulting in loss or damage.
Liability
Section 5 of the Civil Liability Act 2002 (NSW) covers claims in respect of harm resulting from negligence, including personal injury.
Division 2 of the Act sets out the principles of duty of care and how to establish whether a person or entity is negligent; that is whether the defendant owed you a duty of care to take precautions against a risk of harm and has failed to do so in circumstances where the risk is foreseeable (within s 5B(1)(a)); was not insignificant (within s 5B(1)(b)); and a reasonable person in the defendant’s position would have taken precautions against the risk of harm, having regard to the:
(a) probability that harm would occur if care were not taken;
(b) likely seriousness of the harm;
(c) burden of taking precautions to avoid the risk of harm; and
(d) social utility of the activity that created the risk of harm,
pursuant to s 5B(1)(c) and s 5B(2) of the Act.
For more on proving fault and evidence, see our primers: what is a personal injury claim and how to file a compensation claim. You can also check current recall notices via the ACCC’s recall search and recall guidelines for suppliers.
Quantum
Once liability has been established, we must determine whether the incident caused injury and if so, whether the injury is permanent and has given rise to incapacities and damages (loss) such as:
Non-economic loss (pain and suffering and loss of enjoyment of life) — see our overview of non-economic loss in public accident claims;
Economic loss — earning or earning capacity;
Personal care and domestic assistance;
Past and future medical expenses.
Read more about common heads of damage in our personal injury hub and deeper product-specific issues in our product liability explainer. For medical experts, you can locate registered practitioners via the AHPRA register.
Limitation Period
In accordance with section 50D of the Limitation Act 1969 (NSW), an action on a cause of action is not maintainable if brought after the expiration of whichever of the following periods is first to expire:
the “3-year post-discoverability limitation period”, which runs from the date the cause of action is discoverable by the plaintiff; and
the “12-year long-stop limitation period”, which runs from the time of the act or omission alleged to have resulted in the injury or death.
See our quick guide to time limits for personal injury claims in NSW.
Settling Outside of Court
We can, by consent of all parties, seek to participate in an Informal Settlement Conference (ISC) or mediation to try to resolve the matter before commencing court proceedings.
The main difference is that ISCs are conducted without an independent mediator, so they are usually less formal and less costly. Learn more about settlement pathways and ADR options in our public liability guide.
If your injury involved a heater, cooker or gas can, check ACCC guidance on product safety and how consumers should respond to recalls. You can also review historic butane cooker recalls as examples here.
Ready to get advice specific to your situation? Speak to our Product Liability Lawyers or contact Jameson Law on (02) 8806 0866.
