There is nothing quite like the excitement of purchasing a new product, especially if it’s one you have saved for or wanted for some time.
Unfortunately, this excitement can turn to disappointment when you get your new purchase home and realise you have received a faulty product. Then there is the annoyance of having to go back to the store and ask for a refund, repair, or replacement.
It appears that this has been happening all too often lately with a spate of faulty products being uncovered. Earlier in the year, Woolworths was fined more than $3 million for making false or misleading statements about a range of their products and for continuing to sell them after receiving reports of injuries.
The sale of unsafe or faulty products isn’t just confined to those made in Australia, but also extends to those imported from overseas. A unit fire in Melbourne has exposed imported building material that is unsafe and fails to meet Australian building codes and standards.
So what are your rights if you are injured by one of these faulty products? We investigate.
Unsafe or faulty products are governed by the Competition and Consumer Act 2010 (Cth) (“the Act”). Under this Act an injured person has the right to recover damages for their losses resulting from a contravention of the Act. The Act assigns many guarantees to the supply of goods and services to consumers.
Who is a consumer for the purposes of the Act?
A person is taken to have acquired goods or services as a “consumer” where:
- The amount payable for the goods or services did not exceed $40,000; or
- The goods or services were of a kind ordinarily acquired for personal, domestic or household use or consumption; or
- The goods consisted of a commercial road vehicle (this being a vehicle or trailer acquired for use principally in the transport of goods on public roads).
With respect to unsafe and faulty products, the Act states that when goods are supplied to a consumer there is a guarantee that the goods are of acceptable quality.
Under Australian Consumer Law goods will be considered to be acceptable quality if they are:
- Fit for all the purposes for which goods of that kind are commonly supplied; and
- Acceptable in appearance and finish; and
- Free from defects; and
- Safe; and
- Durable.
It is considered reasonable for a consumer fully acquainted with the state and conditions of the goods (including any “hidden defects” of the goods), to take into account the following indications and guarantees when considering the quality of goods:
- The nature of the goods; and
- The price of the goods (if relevant); and
- Any statements made about the goods on any packaging or label on the goods; and
- Any representations made about the goods by the supplier or manufacturer of the goods; and
- Any other relevant circumstances relating to the supply of the goods.
If this particular guarantee is not complied with, (such as the supply of an unsafe or faulty product) and a consumer is injured as a result, then that consumer has the right to bring a claim for damages as a result of this contravention.
These claims are usually brought against the manufacturer or supplier of the product. If the manufacturer of the goods does not have a place of business in Australia, then the claim can be brought against the Australian importer of the product, as the importer is deemed to be the manufacturer. For a consumer injured in Queensland by a faulty or unsafe product a claim will be brought under the Personal Injuries Proceedings Act 2002 (Qld).
For those who are not familiar with their rights as a customer, Australia’s consumer group Choice has the following ten consumer rights and tips:
- “No refund” signs are against the law
- If a product isn’t of acceptable quality, the retailer can’t charge you to fix it
- Retailers can’t just refer you to the manufacturer;
- If the fault is “major”, you can ask for a refund or replacement rather than a repair
- Retailers should pay the transportation cost for bulky items
- You should be informed if a replacement is second-hand or if refurbished parts have been used
- Repairs must be made within a reasonable time
- You don’t have to return a faulty product in its original packaging
- If you’ve lost a receipt, you can still show proof of purchase with a credit card statement, confirmation or receipt number from an internet or phone transaction
- Extended warranties are often not necessary as they may not cover much more than the Australian Consumer Law.
When purchasing a product, you should remember that you have a legal right to return any faulty products, despite the store policy inferring you cannot. If you have been injured due to a defective or unsafe product you have the right to bring a claim for personal injury against the manufacturer or supplier.
It is important to note, however, that just because goods cause an injury; it does not mean they are defective or unsafe. The circumstances that a Court will consider in determining the safety of the product include how and for what purposes the product has been marketed, the packaging, the use of any mark in relation to the product, instructions or warnings about assembling and using the product, what might reasonably be expected to be done with the product, and the time when it was supplied.
