Overview
Australia's product liability laws are a mix of common law and federal and state legislation.
The introduction of the Australian Consumer Law (ACL) in 2010 made the process of framing many claims in Australia more uniform. While a number of provisions in the ACL impose something akin to a strict liability on a product's fitness for purpose or merchantable quality, there are several defenses available to a party defending a claim, including defenses in common law negligence and under contract, and defenses relating to the state of scientific or technical knowledge at the time that the goods were supplied.
Our product liability lawyers have in-depth experience in all areas of product liability, including product defects, contamination, recalls, insurance coverage, class actions and mass tort litigation. Through innovative dispute resolution strategies and effective case management, we ensure that matters are resolved quickly, utilizing alternative dispute resolution methods where possible. This allows us to deliver positive results for our clients where time is of the essence.
We have been involved in complex life sciences, consumer, food and beverages, manufacturer/supplier and toxic tort product liability disputes. In an ever increasing global market, we can provide sophisticated project management and coordinated global strategies to guide companies through product incidents, recalls and claims, ensuring that incidents and disputes are handled in a consistent fashion across multiple jurisdictions and resolved quickly and cost-effectively wherever possible.
We also advise on front-end risk minimization, as well as in relation to recovery of losses from third party suppliers, which can be problematic in circumstances where those third party suppliers are located offshore and may operate in jurisdictions that have less robust regulatory and legal regimes.
Pharmaceuticals
and medical devices
Pharmaceuticals, medical devices and other therapeutic goods are regulated outside the ACL; instead, they are regulated under the Therapeutic Goods Act 1989 (Cth). We are trusted by some of the largest global life sciences companies to act on their behalf in extensive product liability cases.
Acting for a global pharmaceutical company in a recently settled Federal Court class action – a failure to warn case, involving over 170 group members, alleging side effects arising from the consumption of two pharmaceuticals used to treat symptoms of Parkinson's disease and restless leg syndrome.
Representing a global pharmaceutical company in several coronial inquests in two states relating to alleged side effects of a varenicline pharmaceutical.
Acting concurrently for pharmaceutical and medical device companies in numerous product liability claims and the management of incidents.
Advising a global pharmaceutical company on allegations about alleged side effects arising from the consumption of an estrogen product.
Chemicals and
toxic torts
Our product liability team has extensive experience defending a wide range of companies in toxic tort matters including dust diseases, contamination and asbestos claims.
In Australia, manufacturers have notification obligations if they become aware of an injury, illness or death associated with one of their products. There are also separate reporting requirements for specific classes of goods as well as occupational health and safety regimes in each State.
Our team is experienced in handling sensitivities around toxic tort matters and have represented defendants in class action and individual actions alleging personal injury, wrongful death, and diminution in property values.
Acting in a group proceeding in which equitable contribution was sought in approximately 250 separate claims as a result of a partnership agreement between two asbestos manufacturers in the 1960s and 1970s. We were recently successful in the Victorian Court of Appeal, having also won at trial.
Acting for the Trust Fund which handles the asbestos liabilities of Australia's largest manufacturer and supplier of asbestos products.
Acting for a US asbestos defense Trust in multiple claims lodged in relation to alleged exposure to US made asbestos products in Australia.
Advising a global manufacturer on silicosis issues with its products and workplace.
Advising the purchaser in a global M&A deal on asbestos risks arising from the acquisition.
Advising a global manufacturing company on asbestos removal from one of its plants.
Food and
beverage
Food Standards Australia New Zealand (FSANZ) develops and administers the Australia New Zealand Food Standards Code, which sets out standards for foods such as additives, food safety, labelling and genetically modified foods. Enforcement and interpretation of the Code is the responsibility of state and territory departments and food agencies within Australia and New Zealand. FSANZ is responsible for food and beverage product liability cases, including product recalls in Australia. Between January 1, 2006 and December 31, 2016, FSANZ was notified of 608 recalls. Australia sees an average of 61 recalls a year.
Product recall cases in the food and beverage sector can be extremely damaging in the long-term to the brand and its profitability.
We understand the sensitivities that arise from the publicity such recalls can attract and will work with you to mitigate the reputational damage that may occur.
Acting in relation to a nationwide product recall and multiple claims arising from frozen berries that led to an Australia-wide Hepatitis A outbreak.
Acting for a national food manufacturer in relation to a recall of salt and salt-based products. Due to our early intervention, claims worth many millions of dollars were avoided.
Regularly acting for a global food manufacturer in product related matters including recalls, product liability claims and supplier disputes.
Advising and acting for a food company in relation to a product recall of its instant noodle range initiated by the Department of Agriculture. We were successful in obtaining a stay of the recall until the complete testing of the products, which resulted in the requirement for a recall being withdrawn.
Consumer
products
All consumer products must be safe and meet consumer guarantees under the Australian Consumer Law (ACL). Under the ACL, commonwealth, state and territory ministers can regulate consumer goods and product-related services by issuing safety warning notices, banning products on a temporary or permanent basis, imposing mandatory safety standards or issuing a compulsory recall notice to suppliers.
In relation to product recalls, the ACL states that suppliers should recall consumer goods (being goods intended or likely to be used for personal, domestic or household use) as soon as they realize the goods may cause injury or do not comply with a safety standard.
We advise clients on complying with the ACL, including advising on product bans, recalls and safety standards.
Across Asia-Pacific, our team represents approximately 35 percent of the world's leading brands according to the annual Interbrand survey “Best Global Brands 2013” across a spectrum of industries. Our work for these brand owners demonstrates our ability to operate seamlessly across multiple jurisdictions, always keeping our clients' commercial interests at the forefront of everything we do.
Acting for a global supplier of novelty products on an Australian product recall that was part of a wider global recall.
Acting a US bicycle manufacturer on a potential Australian product recall that was part of a wider global recall.
Acting for a US company on a recall/replacement of pool fences.
Acting for a global retailer in relation to potential product recall of health and wellbeing products. Pursuant to our advice the recall was avoided.
Acting for a US manufacturer of bathroom products on a potential recall, which was avoided.
Regulatory
Doing business across borders creates additional regulatory challenges. We collaborate with our colleagues around the world to ensure that each client receives sound advice based on a multi-disciplinary and multi-jurisdictional approach. Consistency of approach across multiple jurisdictions is essential to help avoid regulatory scrutiny.
Within Australia, our dedicated regulatory team, advises on complex regulatory matters working closely with the product liability team to deliver the commercial outcomes most appropriate for clients' business strategies.
Product manufacturers are also at risk of complaints to the Australian Competition and Consumer Commission (ACCC) and state consumer safety authorities. We have extensive experience working on both sides of ACCC matters, thereby providing a holistic solution for our clients.
Advising and acting for a confidential medical device company in Australia on a matter where the Therapeutic Goods Administration refused to list a therapeutic good. The matter resulted in the product being listed on an expedited basis.
