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Bought something that caused injury?
Buying a product that fails the safety standard is not only a waste of your money, but also put a risk to your health and properties.
We have been instructed to investigate the prospects of bringing a 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 procedure 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 of this accident, our client sustained burn injuries which require medical treatment.
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) (‘the Act’) 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 5B1(a)); was not insignificant (within s 5B1(a) ); 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 5B(1)(c) and s 5B(1)(2) of the Act.
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;
Economic Loss – earning or earning capacity;
Personal Care and Domestic Assistance;
Past and Future Medical Expenses.
If and once we have established that the claim has prospects of success and have commenced proceedings, we will obtain relevant expert reports such as, orthopaedic surgeon, vocational assessor, occupational therapist reports etc. The experts will provide an indication as to your capacity to undertake the relevant activities and what your loss is. This will assist us to quantify your claim and advise of what the range of damages may be.
Limitation Period
In accordance with section 50D of the Limitation Act 1969, an action on a cause of action is not maintainable if brought after the expiration of a limitation period of whichever of the following periods is the first to expire—
the “3 year post discoverability limitation period”, which is the period of 3 years running from and including the date on which the cause of action is discoverable by the plaintiff,
the “12 year long-stop limitation period”, which is the period of 12 years running from the time of the act or omission alleged to have resulted in the injury or death with which the claim is concerned.
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 we commence proceedings in Court.
The main difference is ISCs are conducted without the involvement of an objective third party (mediator); meaning it’s less formal and costly.
Parties must attend mediations in good faith and with a view to genuinely attempting to resolve the matter. Whilst this is also the intention in ISCs, if the parties feel settlement is unlikely/unattainable due to irreconcilable difference in quantum and/or due to complex issues with liability and causation, at times, parties opt for an ISC to save time (noting availability of mediator is not an issue) and unnecessary costs of mediation.
