Product liability · Food and drink
Contaminated food or drink? You may have strict liability rights against the manufacturer.
Food is a product too. If contaminated or unsafe food or drink injures you or makes you ill, the manufacturer may have to compensate you without you proving anyone was careless. (Australian Consumer Law s 138) The business that sold it to you guarantees it was of acceptable quality, which includes being safe. (s 54) You still have to show what made you ill.
- 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.
Symptoms started later?
The notice of claim is generally due 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)) Keep a record of when you first felt ill.
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 food and drink cause injury.
Food safety laws set the standards, and a breach can be evidence. But a breach doesn’t give a claim on its own, and meeting the standards doesn’t prove the food was safe. (Food Act 2006 (Qld) s 6)
Food poisoning
Bacteria such as salmonella or listeria, from poor handling, storage or cooking.
Undeclared allergens
Nuts, gluten, shellfish or other allergens missing from the label or menu.
Foreign objects
Glass, metal, plastic or stones that break teeth or cut the mouth.
Chemical contamination
Cleaning products, pesticides or other chemicals in food or drink.
Unsafe packaging
Bottles that shatter or burst, and cans or jars with sharp or broken edges.
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 or producer
The business that grew, made or processed it, or put its own brand on it. (Australian Consumer Law s 7)
Ask for: The packaging, batch number and use-by date
The seller, café or restaurant
If you bought it, or it was bought for you, the business that sold or served it guarantees it’s of acceptable quality, which includes being safe. (s 54) It must also take reasonable care in handling it.
Ask for: Your receipt, booking or order record
The importer
If the maker has no place of business in Australia, the importer is treated as the manufacturer. (s 7)
Ask for: The label, and the importer’s details on it
Straight after
Four things to do now.
- Step 1
Keep what’s left
Refrigerate or freeze leftovers and the packaging, labelled and dated.
- Step 2
See a doctor
Get treatment promptly, and ask whether tests can show what made you ill.
- Step 3
Write it down
What you ate, where and when, when symptoms started, and who else ate it.
- Step 4
Check for recalls
Search Food Standards Australia New Zealand’s food recalls, 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. You need to show what made you ill, and that it came from the food, which is usually the hardest part. Leftovers, test results and others who became ill can help.
Possibly both. The restaurant guarantees the food it served you was of acceptable quality, which includes being safe, and must handle it with reasonable care. The maker of an ingredient may be responsible for a safety defect. (Australian Consumer Law ss 54, 138)
Possibly. Missing or wrong allergen information can make a product unsafe. (Australian Consumer Law s 9) You still need to show it caused your reaction.
No. A breach can be evidence, but it doesn’t give a claim on its own. You still need a claim under the consumer law or in negligence, and proof of what caused the injury. (Food Act 2006 (Qld) s 6)
Several clocks run at once. A notice of claim is generally due 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) A safety defect claim must start within 3 years of when you knew, or should have known, of the loss, the defect and the maker, and no later than 10 years after the maker supplied the product. (Australian Consumer Law s 143) For injury damages, another limit can start earlier. A negligence claim has its own limit.
Hurt by another kind of product?
Keep what’s left
Made ill by food or drink?
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.