AUSTRALIA Law and Practice Contributed by: Greg Williams, Alexandra Rose and Caitlin Sheehy, Clayton Utz
• comply with any express warranties given in rela - tion to them. Remedies for breach of the above-mentioned con - sumer guarantees are provided in Part 5-4 of the Australian Consumer Law. For actions against sup - pliers, consumers have a number of remedies avail - able, including in some cases the right to return the goods and demand a refund, as well as the right to recover any reasonably foreseeable losses suffered by reason of the failure of the goods to comply with the guarantee. Part 5-4 also provides an extended right to sue the manufacturer of goods for damages if they breach guarantees of acceptable quality, in terms of supply of goods by description, as to repairs and spare parts Part 3-5 of the Australian Consumer Law imposes lia - bility on manufacturers of goods with safety defects. It is closely modelled on the European Product Liability Directive. Goods have a safety defect if their safety is “not such as persons generally are entitled to expect”. Rele - vant surrounding circumstances must be taken into account in making this safety inquiry. If such goods cause personal injury or damage to land, buildings or fixtures, persons who suffer loss as a result of such injury or damage may sue the manufacturer for dam - ages. Expanded Concepts of Consumer and Manufacturer Under the Australian Consumer Law There are specific definitions of “consumer” and “con - sumer goods” as well as “manufacturer” in the Aus - tralian Consumer Law. “Consumer goods” or “goods acquired as a consum - er” are goods that: • cost AUD100,000 or less, are a vehicle or trailer acquired for use principally in the transport of goods on public roads, or are otherwise goods that are of a kind ordinarily acquired for personal, domestic or household use or consumption; or express warranties. Strict Liability Regime
• were not acquired for the purposes of using them up or transforming them, in trade or commerce, in the course of a process of production or manu - facture or repair or treatment of other goods or fixtures on land; and • were not acquired: (a) (for goods other than gift cards) for the pur - pose of resupply; or (b) (for gift cards) for the purpose of re‑supply in trade or commerce. The term “manufacturer” has a deeming function, and it means not only the actual manufacturer of goods (ie, a person who grows, extracts, produces, processes or assembles goods), but also: • a person who causes or permits their name (or a name by which the person carries on business or a brand or mark of the person) to be applied to the goods; • a person who causes or permits themselves to be held out as the manufacturer of the goods; and • a person who imports the goods into Australia (if the actual manufacturer of the goods does not have a place of business in Australia). Contract Another cause of action for a person who has been injured or who has suffered loss or damage is under the law of contract. However, the number of these claims has diminished owing to the growth of statu - tory remedies and remedies available under the tort of negligence. 2.2 Standing to Bring Product Liability Claims Under the Australian regime, the original purchaser is not the only person who may make a claim for injuries caused by a product. Apart from the remedies avail - able for breach of consumer guarantees, which may only be sought by the consumer who received the goods from the supplier, the other causes of action outlined in 2.1 Product Liability Causes of Action and Sources of Law may be relied upon by any person who suffers loss and damage that is compensable under the relevant cause of action.
17 CHAMBERS.COM
Powered by FlippingBook