Injured by a defective product? You have a right to compensation.

The ACL (Part 3-5) creates a statutory product liability regime under which manufacturers are liable for injuries caused by goods with a "safety defect" — without requiring proof of negligence. A safety defect exists where the safety of the goods is not what persons generally are entitled to expect. At common law, product liability claims in negligence require proof that the manufacturer owed you a duty of care, breached that duty, and the breach caused your injury. Both pathways may be available in any given case — and in many cases both are run simultaneously.

Under the ACL, "manufacturer" is defined broadly — it includes the actual manufacturer, any person who holds themselves out as the manufacturer (including by brand name), and — if the goods were imported — the importer into Australia. Where a supplier cannot or does not provide the manufacturer's details within 30 days of a request from a claimant, the supplier can be treated as the manufacturer. In practice, where the overseas manufacturer is difficult to sue, the Australian importer or the Australian company that brands the product is often the primary defendant.

Under Part 3-5 of the ACL, goods have a "safety defect" if their safety is not what persons generally are entitled to expect. In assessing this, courts consider: the manner in which the goods were marketed; the use of any warnings or instructions; what might reasonably be expected to be done with the goods; and the time the goods were supplied. A defect can be a design defect (affecting all units), a manufacturing defect (affecting a particular unit), or a marketing defect (inadequate warnings or instructions). All three types can give rise to a claim.

Immediately after a product-related injury: (1) preserve the product — do not discard or repair it; (2) photograph the product, the defect if visible, and any injuries or property damage; (3) keep all packaging, receipts, and documentation; (4) seek medical treatment promptly and keep all records; (5) report the incident to the retailer and manufacturer in writing; (6) consider reporting to the ACCC's Product Safety website (recalls.gov.au). The defective product itself is your most important evidence — its condition at the time of the incident is critical to establishing the defect.

Compensation for product injuries can include: medical expenses (past and future); loss of income (past and future); pain and suffering and loss of enjoyment of life; property damage; out-of-pocket expenses; and, in the most serious cases, compensation for permanent disability and the need for ongoing care. The ACL's statutory regime covers personal injuries and property damage over $5,000 suffered by individuals. Property damage claims under $5,000 are excluded from Part 3-5 ACL but may be pursued through contract or negligence. State personal injury legislation also applies to the quantum of damages.

Where a defective product has harmed many people — for example, a faulty car part, a recalled food product, or a medical device — class action proceedings may have already been commenced or may be more appropriate than individual claims. Joining an existing class action means your claim is managed collectively, legal costs are shared, and the common questions of liability and defect are determined once for all class members. Individual claims may be more appropriate where your injuries are unique or your circumstances differ significantly from other affected consumers. A lawyer can advise which approach is best for your situation.