Product liability · Children’s products
Child injured by a defective toy or product? You may have strict liability rights against the manufacturer.
If a toy or nursery product isn’t as safe as people generally are entitled to expect and it injures your child, the maker may have to compensate them. (Australian Consumer Law s 138) Many children’s products must also meet mandatory safety standards. A child’s claim has its own time limits, but some consumer law deadlines run during childhood.
- No-obligation first consultation
- No win, no fee*
- We set out our costs in writing at the start.
Time limits
Several clocks run at once, from different starting points.
Claim facts
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Notice of claim
Within 9 months of the injury (or of first symptoms, if later), or 1 month after you first ask a lawyer to act for you and the respondent is identified, whichever comes first. (PIPA s 9(3)) A late notice can still be given, with a reasonable excuse for the delay. (s 9(5))
9 months
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Safety defect claim
Within 3 years of when you knew, or should have known, of the loss, the defect and who the maker is. (Australian Consumer Law s 143) For injury damages, a separate 3-year limit can start earlier, from when you knew, or should have known, of the injury and its cause, so don’t wait to find out who made it. (Competition and Consumer Act 2010 (Cth) ss 87F, 87G)
3 years
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Safety defect cut-off
A safety defect claim must start within 10 years after the maker supplied the product, even if the injury shows up later. (Australian Consumer Law s 143) This cut-off doesn’t apply to a negligence claim.
10 years
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Negligence claim
Generally within 3 years of the injury. (Limitation of Actions Act 1974 (Qld) s 11)
3 years
Several clocks run at once. The earliest one is usually the notice of claim.
If it happened to a child
Don’t assume you can wait until your child turns 18. Some consumer law deadlines run from when the product was supplied, or from when a parent knew of the injury.
A gift or second-hand?
A safety defect claim against the manufacturer doesn’t depend on who bought the product, (Australian Consumer Law s 138) but it must start within 10 years after the maker supplied it. (s 143) A consumer guarantee claim is only for the buyer, or someone who got it from them, such as a child given it as a gift.
Approved isn’t the same as safe
Regulator approval isn’t a defence, and a recall doesn’t prove your case on its own.
Three ways to claim
One injury. Up to three legal routes.
Product claims are usually made in more than one way at once, because each has different rules. You’re only compensated once.
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Track 1
Safety defect
Against the manufacturer
No need to prove carelessness. You must prove a safety defect, and that it caused the injury. (Australian Consumer Law s 138) May not be available where workers’ compensation applies. (s 146)
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Track 2
Consumer guarantee
Against the seller or maker
Products must be of acceptable quality, which includes being safe. (s 54) Only for the buyer, or someone who got it from them, such as a gift recipient.
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Track 3
Negligence
Against anyone careless
Against a maker, importer or supplier that was careless in design, manufacture, testing or warnings.
What makes it defective
Is it as safe as people generally are entitled to expect?
That’s the test. (Australian Consumer Law s 9) Most defects fall into one of three kinds.
Contents: kinds of defect
- DesignThe product was made as intended, but the design itself was unsafe.
- ManufactureSomething went wrong in making this one: a faulty part, batch or assembly.
- WarningsThe instructions or warnings didn’t tell you about a hazard, or how to use it safely.
What a court looks at
- How it was marketed, and what for
- Its packaging, marks, instructions and warnings
- What might reasonably be done with it
- When the maker supplied it
Approved isn’t the same as safe. Regulator approval isn’t a defence, and a recall doesn’t prove your case on its own.
What the maker can argue.
- The defect didn’t exist when the maker supplied it
- It was only there because the product had to meet a mandatory standard
- Scientific or technical knowledge when the maker supplied it couldn’t have found the defect
- For a part: the defect came only from the finished product’s design, markings, instructions or warnings
The maker has to prove a defence. (Australian Consumer Law s 142) Your own share of responsibility can also reduce damages. (Competition and Consumer Act 2010 (Cth) s 137A)
How it happens
How toys and children’s products cause injury.
Many children’s products must meet mandatory safety standards, and some are banned. A product that doesn’t meet a mandatory standard can be strong evidence of a defect.
Small parts and choking
Parts that break off, or are small enough to swallow or inhale.
Button batteries and magnets
Batteries and small magnets that can be swallowed, causing serious internal injuries.
Cots, prams and high chairs
Nursery products that collapse, trap a child or tip over.
Missing age warnings
Labels that don’t warn of a hazard or give the right age range.
Burns and chemicals
Toys that overheat, or contain unsafe chemicals or coatings.
Who may be responsible
More than one business can answer for one product.
More than one may be liable. Where several are liable as manufacturer, each can be liable for the full amount. (Australian Consumer Law s 144)
The manufacturer
The business that made the product, or put its own brand on it. (Australian Consumer Law s 7)
Ask for: The product, its labels and age warnings
The importer
Many toys are made overseas. If the maker has no place of business in Australia, the importer is treated as the manufacturer. (s 7)
Ask for: The packaging, and the seller’s details
The seller
If you bought it, or it was given to your child, the business that sold it guarantees it’s of acceptable quality, which includes being safe. (s 54)
Ask for: Your receipt or order record
Straight after
Four things to do now.
- Step 1
Keep the product
Keep every part, the packaging and the receipt. Don’t repair it or let anyone use it.
- Step 2
Don’t send it back
Don’t return it to the maker or the shop for testing or a refund before you get advice.
- Step 3
Keep the medical records
From the start: hospital, GP and specialist notes, and receipts.
- Step 4
Check for recalls
Search productsafety.gov.au and save what you find. A recall is evidence, not proof.
Compensation
What you can claim.
Claims are usually made under more than one track, because the damages rules differ. Medicare and Centrelink may need to be repaid from a settlement.
- Pain and sufferingAssessed under the rules for the claim that succeeds. Consumer law injury claims can have their own thresholds.
- Past and future lost earningsWages and super you’ve lost, and what the injury will cost you in future.
- Treatment costsMedical, hospital and rehabilitation costs, past and future.
- Care from familyIf it’s needed for at least 6 hours a week for at least 6 months.
- Paid care and aidsHelp at home, equipment and changes you need because of the injury.
- Damage to your thingsOther personal property or your home damaged by the defect. (Australian Consumer Law ss 140, 141)
How a claim runs
From the first call to court, if it’s needed.
No-obligation first consultation
We look at the product, what happened, who may be responsible and your time limits.
Secure the product
Kept safe, with a record of who has held it. Any testing is independent.
Notice of claim
A notice of claim goes to each business you claim against, within the time limit. (PIPA s 9, or the CTP or medical negligence rules where they apply)
Experts and evidence
Engineering or medical experts on the defect and what it caused.
Conference and offers
A compulsory conference, then written final offers if it doesn’t settle. (PIPA ss 36, 39)
Court, if needed
If the claim hasn’t resolved, proceedings start within the time limit.
If your claim doesn’t succeed, you pay no professional fees for our work. You may still have to pay outlays, such as report and court fees, if your costs agreement says so. If a court case is lost or withdrawn, or you don’t do better than an offer the other side made, you may have to pay the other side’s legal costs. We explain this in writing before you sign.
No-obligation first consultation
You decide whether to go ahead once you know your options and the likely costs.
Everything in writing
Fees and outlays are set out in a costs agreement before we start.
Capped at 50%
Our professional fees are capped at 50% of what you recover, after refunds and outlays. (Legal Profession Act 2007 (Qld) s 347)
Questions
Questions people ask.
Possibly. Meeting a standard doesn’t always mean a product is safe. Meeting a mandatory standard is a defence only if the defect existed only because the product had to meet that standard. (Australian Consumer Law s 142(b))
The claim is the child’s own. A parent can give the notice of claim for a child, (PIPA s 9(4)) and any settlement needs the approval of a court or the Public Trustee. (Public Trustee Act 1978 (Qld) s 59)
Not for every claim. A negligence claim can generally go to court up to 3 years after they turn 18. (Limitation of Actions Act 1974 (Qld) s 29) But consumer law limits can run during childhood, from supply or from what a parent knew, and the notice of claim has the usual deadline.
Generally, yes. A safety defect claim against the manufacturer doesn’t depend on who bought the product. (Australian Consumer Law s 138)
No. A recall can support a claim, but you still need to show your product had the defect and that it caused your injury.
Hurt by another kind of product?
Keep the product
Was your child hurt by a product?
Your first consultation covers who may be responsible and which time limits apply. There’s no obligation to go ahead.
No win, no fee*: if your claim doesn’t succeed, you pay no professional fees for our work. You may still have to pay outlays, such as report and court fees, if your costs agreement says so. If a court case is lost or withdrawn, or you don’t do better than an offer the other side made, you may have to pay the other side’s legal costs. We explain this in writing before you sign. This page is general information, not legal advice about your situation.