AUSTRALIA Law and Practice Contributed by: Greg Williams, Alexandra Rose, Caitlin Sheehy and Sarah Aljassim, Clayton Utz
miscarriage of justice is sufficiently great to jus - tify the appeal being heard by the High Court. Once a matter has been determined by the High Court, there is no further appeal and the decision is binding on all other Australian courts. Appeals in most Australian courts are by way of rehearing, meaning that the court has the power to consider all of the evidence afresh. However, no new evidence may be put before the appel - late court unless that court grants leave. It is extremely rare for such leave to be granted in In the Full Court of the Federal Court, appeals from final judgments must be filed and served within 28 days of the trial decision. Timeframes for state and territory courts of appeal vary based on jurisdiction but are all of a similar order. 2.12 Defences to Product Liability Claims Negligence The following defences may be available to a claim in negligence: civil matters. Timeframes
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 accom - modate 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 materiali - sation of an inherent risk (unavoidable by the exercise of reasonable care and skill) or an obvious risk (obvious to a reasonable person); • the conduct was widely accepted at the time by peer professional opinion as competent professional practice; • the defendant is a good Samaritan or volun - teer exercising reasonable skill and care; or • the defendant is a public or other authority (in certain cases). Australian Consumer Law In cases where a safety defect was not discover - able within the limitations of science and tech - nology at the time of distribution, the manufac - turer 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 products. 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 standard. A mandatory standard is
• voluntary assumption of risk; • contributory negligence; and • the learned intermediary defence.
Voluntary assumption of risk is when a plain - tiff consciously decides to take responsibility for injury, loss or damage. In establishing this defence, the defendant must show that the plaintiff properly perceived 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 negli - gence will result in apportionment of damages
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