Product liability · Motor vehicles
Defective vehicle? You may have strict liability rights against the manufacturer.
If a defect in a car, motorbike or part injures you, the manufacturer may have to compensate you without you proving anyone was careless. (Australian Consumer Law s 138) If you were hurt in a crash, or the defect caused loss of control while the vehicle was being driven, the CTP (motor accident) process usually applies instead of the usual notice of claim, with its own notice and time limits.
- 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.
Was the vehicle being driven?
If you were hurt in a crash, or the defect caused loss of control while the vehicle was being driven, the claim usually follows the CTP rules, with their own notice and time limits. (Motor Accident Insurance Act 1994 (Qld) s 5(1)) An injury from a defect in a parked vehicle, like a fire, may go through the usual notice of claim.
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 vehicle defects cause injury.
A defect can be in the vehicle’s design, in how it or a part was made, or in its warnings and manuals. (Australian Consumer Law s 9) A recall is evidence of a problem, not proof of your claim.
Airbags
Airbags that deploy with too much force, throw fragments, or don’t deploy at all.
Brakes, steering and tyres
Brakes that fail, steering that locks, or tyres that blow out or separate.
Fires
Fuel leaks and electrical faults that start a fire, including in a parked vehicle.
Sudden acceleration or stalling
Engines or controls that speed up, cut out or lose power without warning.
Seatbelts and child seats
Belts, buckles and child restraints that release or fail in a crash.
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 vehicle manufacturer
The maker, or the business that imports the vehicle if the maker has no place of business in Australia. (Australian Consumer Law s 7)
Ask for: The VIN, build date and any recall notice
The part’s maker
The maker of a faulty airbag, tyre, brake or other part may also be liable.
Ask for: The part, and its brand and batch
The dealer or seller
If you bought the vehicle from a business, that business guarantees it’s of acceptable quality, which includes being safe. (s 54)
Ask for: Your purchase contract and service history
Straight after
Four things to do now.
- Step 1
Don’t repair or scrap it
Ask the insurer and repairer to hold the vehicle, or the failed part, until you get advice.
- Step 2
Photograph everything
The vehicle, the damage, the scene and your injuries.
- Step 3
Check for recalls
Search vehiclerecalls.gov.au for your make and model, ask the dealer or maker to check your VIN, and save what you find. A recall is evidence, not proof.
- Step 4
See a doctor
Get treatment, and keep referrals and receipts. Treatment costs may be claimable.
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.
Often, but not always. If you were hurt in a crash, or the defect caused loss of control while the vehicle was being driven, the claim generally follows the Motor Accident Insurance Act process, with its own notice and time limits. (Motor Accident Insurance Act 1994 (Qld) s 5(1)) The claim may be against a CTP insurer, the manufacturer, or both, depending on who was at fault, so get advice early.
No. A recall can support a claim, but you still need to show your vehicle had the defect and that it caused your injury. Check whether the recall work was done, and keep the records.
Generally, yes. A safety defect claim against the manufacturer doesn’t depend on who bought the vehicle. (Australian Consumer Law s 138) But it must start within 10 years after the maker supplied the vehicle, so an older car may be outside it. (s 143) A claim against a seller depends on who sold it to you: a private seller doesn’t give the consumer guarantees.
Not usually. Careless repairs are generally a claim against the repairer, and the guarantee that services are provided with due care and skill may apply. (Australian Consumer Law s 60) A claim can be made against each business responsible.
Several clocks run at once. If the CTP process applies, the Motor Accident Insurance Act sets its own notice and time limits. Otherwise, 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 vehicle. (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 the vehicle
Hurt by a vehicle defect?
Your first consultation covers which scheme applies, who may be responsible, and your time limits. 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.