Australia’s product safety and liability laws represent a significant challenge for product manufacturers, importers and suppliers.
Australia has a strict product liability regime modelled on the EC's Product Liability Directive 1985, and only limited defences are available to manufacturers and suppliers of goods of defective products that cause injuries.
On the regulatory front both the Federal and State/Territory Governments play a role in regulating product safety. While some progress has been made towards harmonisation of the law, many categories of products are still subject to state-specific legislation and Australia’s product safety regulatory system lacks overall coherence.
Minimising the risk of product liability exposure requires pre-emptive strategies, including product safety compliance systems, obtaining adequate insurance coverage and developing product recall procedures. Suppliers also need to remain mindful of their obligations to notify the Australian Government of product-related serious injuries and fatalities. Consideration needs to be given to the law as it applies to a product both pre-sale (e.g. marketing approval, product safety and labelling) and post-sale (e.g. product recall, injury notification and product liability exposures).
Our team has experience assisting manufacturers, importers and suppliers on regulatory issues and product liability litigation involving a diverse range of goods including:
- Automotive vehicles and components;
- Consumer goods;
- Children’s products;
- Electrical products;
- Food and drink;
- Heavy equipment; and
- Over-the-counter and complementary medicines.
- Defending proceedings commenced in the Federal Court brought against a medical device manufacturer alleging breach of sections 52 and 53 of the Trade Practices Act (as it then was) in the advertising of its products.
- Defending suppliers of products in claims for personal injuries and property damage, including children’s products, pharmaceuticals and chemicals.
- Assisting suppliers in relation to recalls of a diverse range of consumer products including food, timber products, safety equipment, consumer electrical products, automotive accessories, chemical products and children's clothes and toys, including the need to recall in borderline cases.
- Advising on product liability risks, including issues relating to product warnings, mandatory product safety standards and the injury notification requirements of the Australian Consumer Law.
- Answering complaints from regulators, including the ACCC, State and Territory Departments of Fair Trading and Health, on a wide range of issues including allegations of misleading and deceptive conduct, allegations of contravention of product safety/information standards and allegations of breach of the Food Standards Code and health legislation.
- Acting for a medical device supplier in AAT proceedings seeking review of the decision of the Minister of the Department of Health and Ageing to refuse to issue a conformity assessment certificate.
- Acting for the sponsor of a complementary medicine product in Federal Court proceedings seeking a stay of a decision of the Secretary of the Department of Health and Ageing to cancel the listing of the product in circumstances where less than seven days’ notice was given of the decision.
- Acting for the supplier of veterinary products in criminal proceedings relating to the supply of an unregistered product.
- Labelling and composition issues including the classification of products on the food/therapeutic goods interface.
- Preparation of submissions in relation to law reform proposals.
- Formulating and responding to complaints made under the Medicines Australia Code of Conduct and the Medical Technology Association of Australia Code of Conduct.
- Providing advice in relation to the Australian Consumer Law on liability and risk under distribution and supply arrangements.
- Drafting agreements for the manufacture and supply of pharmaceuticals, supplements and cosmetics.
- Acting for an electrical components manufacturer in State Supreme Court proceedings for $20m damages arising out of recall of allegedly defective components.
- Advising a chemicals manufacturer about potential liability arising from recall of allegedly contaminated milk containers.