AUSTRALIA Law and Practice Contributed by: Greg Williams, Alexandra Rose and Caitlin Sheehy, Clayton Utz
and appreciated the danger, and voluntarily chose to accept the risk. Contributory negligence may be relied upon when the plaintiff has contributed to their own injury by failing to meet the standard of care for their own safety. Typically, contributory negligence will result in apportionment of damages according to the degree of fault, but may be a complete defence in some jurisdictions. The learned intermediary defence has not yet been applied in Australian courts. However, the existing common law principles would accommodate its use. The introduction of various Civil Liability Acts has also led to additional specific statutory defences relating to certain types of claims. By way of example, the state of New South Wales has introduced complete defences where: • harm was suffered as a result of the materialisation of an inherent risk (unavoidable by the exercise of reasonable care and skill) or an obvious risk (obvi - ous to a reasonable person); • the conduct was widely accepted at the time by peer professional opinion as competent profes - sional practice; • the defendant is a good Samaritan or volunteer exercising reasonable skill and care; or • the defendant is a public or other authority (in cer - tain cases). Australian Consumer Law In cases where a safety defect was not discoverable within the limitations of science and technology at the time of distribution, the manufacturer or supplier may rely on the “state-of-the-art defence” (also known as the “development risk defence”). This defence must be established on the balance of probabilities and the claim in question must be in relation to the Australian Consumer Law provisions relating to defective prod - ucts. Another defence to an action based on a safety defect may be claimed in circumstances where the defect is brought about by compliance with a mandatory stand - ard. A mandatory standard is a standard for goods or anything relating to the goods that, under law, must be complied with when goods are supplied and which
carries a penalty for non-compliance. This defence cannot be claimed in relation to statutory require - ments for goods to achieve a minimum standard. Manufacturers are also entitled to claim a defence where the alleged defect did not exist when the goods were supplied by the manufacturer. Similarly, if an entity is only responsible for the manufacture of a component of the product, that entity will be able to claim a defence against actions for claims relating to safety defects in the finished product. 2.13 The Impact of Regulatory Compliance on Product Liability Claims Adherence to regulatory requirements is a relevant consideration in product liability cases in Australia – although it does not operate as a complete defence to such claims. In this respect, see 2.12 Defences to Product Liability Claims . Unlike in the USA, there is no “pre-emption” defence in Australia. Compliance with applicable regulatory requirements or mandated standards will be a relevant factor considered by the courts in actions for negligence and under the statu - tory warranty or guarantee provisions of the Austral - ian Consumer Law; however, the fact that a product had its safety assessed by a regulator as part of the process of granting a licence to sell that product in Australia does not preclude a product liability claim being brought in respect of it. 2.14 Rules for Payment of Costs in Product Liability Claims Australia has a “loser pays” costs system. The precise rules that apply to calculate the costs payable by an unsuccessful party to a successful one vary from juris - diction to jurisdiction, but are generally calculated on a party/party basis – ie, only some parts of the work undertaken are recoverable (meaning that, in the ordi - nary course, the costs recovered are only a portion of the costs incurred). However, solicitor/client or indem - nity costs – which would be close to the total costs incurred – may be awarded in some circumstances, particularly if a party formally rejected a settlement offer and then failed to do better than that offer at trial. The approach taken to calculating costs differs from jurisdiction to jurisdiction. Some jurisdictions have a scale of costs, which specifies (and limits) the amount
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