• Specific Year
    Any

TRADE PRACTICES AMENDMENT ACT 1992 No. 106 of 1992 - SECT 4

TRADE PRACTICES AMENDMENT ACT 1992 No. 106 of 1992 - SECT 4

4. After Part V of the Principal Act the following Part is inserted:

"PART VA - LIABILITY OF MANUFACTURERS AND
IMPORTERS FOR DEFECTIVE GOODS Interpretation

"75AA. In this Part:
'action goods', in relation to a liability action, means the goods whose
supply and defect is alleged in the action;
'Commonwealth mandatory standard', in relation to goods, means a mandatory
standard in respect of the goods imposed by a law of the Commonwealth;
'defendant', in relation to a liability action, means a person against whom
the action is brought (however described);
'liability action' means an action under section 75AD, 75AE, 75AF or 75AG and
includes such an action because of paragraph 75AD(f) or section 75AH;
'loss' includes damage;
'mandatory standard', in relation to goods, means a standard:

   (a)  for the goods or anything relating to the goods; and

   (b)  that, under a law of the Commonwealth, a State or a Territory, must be
        complied with when the goods are supplied by their manufacturer, being
        a law creating an offence or liability where there is such
        non-compliance; but does not include a standard which may be complied
        with by meeting a higher standard;
'manufactured' includes grown, extracted, produced, processed and assembled;
'plaintiff', in relation to a liability action, means the person by whom the
action is brought (however described);
'use' includes consume. Certain interpretation provisions (importers and
others taken to be manufacturers etc.) apply to this Part

"75AB. Subsections 74A(3) to (8) (inclusive) operate as if references in them
to Division 2A of Part V included references to this Part. Meaning of goods
having defect

"75AC. (1) For the purposes of this Part, goods have a defect if their safety
is not such as persons generally are entitled to expect.

"(2) In determining the extent of the safety of goods, regard is to be given
to all relevant circumstances including:

   (a)  the manner in which, and the purposes for which, they have been
        marketed; and

   (b)  their packaging; and

   (c)  the use of any mark in relation to them; and

   (d)  any instructions for, or warnings with respect to, doing, or
        refraining from doing, anything with or in relation to them; and

   (e)  what might reasonably be expected to be done with or in relation to
        them; and

   (f)  the time when they were supplied by their manufacturer.

"(3) An inference that goods have a defect is not to be made only because of
the fact that, after they were supplied by their manufacturer, safer goods of
the same kind were supplied.

"(4) An inference that goods have a defect is not to be made only because:

   (a)  there was compliance with a Commonwealth mandatory standard for them;
        and

   (b)  that standard was not the safest possible standard having regard to
        the latest state of scientific or technical knowledge when they were
        supplied by their manufacturer. Liability for defective goods causing
        injuries - loss by injured individual

"75AD. If:

   (a)  a corporation, in trade or commerce, supplies goods manufactured by
        it; and

   (b)  they have a defect; and

   (c)  because of the defect, an individual suffers injuries; then:

   (d)  the corporation is liable to compensate the individual for the amount
        of the individual's loss suffered as a result of the injuries; and

   (e)  the individual may recover that amount by action against the
        corporation; and

   (f)  if the individual dies because of the injuries - a law of a State or
        Territory about liability in respect of the death of individuals
        applies as if:

        (i)    the action were an action under the law of the State or
               Territory for damages in respect of the injuries; and

        (ii)   the defect were the corporation's wrongful act, neglect or
               default. Liability for defective goods causing injuries - loss
               by person other than injured individual

"75AE. (1) If:

   (a)  a corporation, in trade or commerce, supplies goods manufactured by
        it; and

   (b)  they have a defect; and

   (c)  because of the defect, an individual suffers injuries; and

   (d)  a person, other than the individual, suffers loss because of:

        (i)    the injuries; or

        (ii)   if the individual dies because of the injuries - the
               individual's death; and

   (e)  the loss does not come about because of a business relationship
        between the person and the individual; then:

   (f)  the corporation is liable to compensate the person for the amount of
        the person's loss; and

   (g)  the person may recover that amount by action against the corporation.

"(2) For the purposes of this section:

   (a)  a profession is taken to be a business; and

   (b)  a relationship between employer and employee or a similar relationship
        is a business relationship. Liability for defective goods - loss
        relating to other goods

"75AF. If:

   (a)  a corporation, in trade or commerce, supplies goods manufactured by
        it; and

   (b)  they have a defect; and

   (c)  because of the defect, goods of a kind ordinarily acquired for
        personal, domestic or household use (not being the defective goods)
        are destroyed or damaged; and

   (d)  a person who:

        (i)    so used; or

        (ii)   intended to so use; the destroyed or damaged goods, suffers
               loss as a result of the destruction or damage; then:

   (e)  the corporation is liable to compensate the person for the amount of
        the loss; and

   (f)  the person may recover that amount by action against the corporation.
        Liability for defective goods - loss relating to buildings etc.

"75AG. If:

   (a)  a corporation, in trade or commerce, supplies goods manufactured by
        it; and

   (b)  they have a defect; and

   (c)  because of the defect, land, buildings, or fixtures, ordinarily
        acquired for private use are destroyed or damaged; and

   (d)  a person who:

        (i)    so used; or

        (ii)   intended to so use; the land, buildings or fixtures, suffers
               loss as a result of the destruction or damage; then:

   (e)  the corporation is liable to compensate the person for the amount of
        the loss; and

   (f)  the person may recover that amount by action against the corporation.
        Survival of liability actions

"75AH. A law of a State or Territory about the survival of causes of action
vested in persons who die applies to actions under section 75AD, 75AE, 75AF or
75AG. No liability action where workers' compensation or law giving effect to
an international agreement applies

"75AI. Section 75AD, 75AE, 75AF or 75AG does not apply to a loss in respect of
which an amount has been, or could be, recovered under a law of the
Commonwealth, a State or a Territory that:

   (a)  relates to workers' compensation; or

   (b)  gives effect to an international agreement. Unidentified manufacturer

"75AJ.(1) If a person who wishes to institute a liability action does not know
who manufactured the action goods, the person may serve on a supplier, or each
supplier, of the action goods who is known to the person a written request to
give the person particulars identifying:

   (a)  the corporation which manufactured the goods (having regard to section
        75AB); or

   (b)  the supplier of the goods to the supplier requested.

"(2) If, 30 days after the person has made the request or requests, the person
still does not know who manufactured the action goods, then the corporation,
or each corporation, that is a supplier:

   (a)  to whom a request was made; and

   (b)  who did not comply with the request; is taken, for the purposes of the
        action, to have manufactured the action goods. Defences

"75AK.(1) In a liability action, it is a defence if it is established that:

   (a)  the defect in the action goods that is alleged to have caused the loss
        did not exist at the supply time; or

   (b)  they had that defect only because there was compliance with a
        mandatory standard for them; or

   (c)  the state of scientific or technical knowledge at the time when they
        were supplied by their actual manufacturer was not such as to enable
        that defect to be discovered; or

   (d)  if they were comprised in other goods ('finished goods') - that defect
        is attributable only to:

        (i)    the design of the finished goods; or

        (ii)   the markings on or accompanying the finished goods; or

        (iii)  the instructions or warnings given by the manufacturer of the
               finished goods.

"(2) In this section:
'supply time' means:

   (a)  in relation to electricity - the time at which it was generated, being
        a time before it was transmitted or distributed; or

   (b)  in relation to other goods - the time when they were supplied by their
        actual manufacturer. Commonwealth liability for goods that are
        defective only because of compliance with Commonwealth mandatory
        standard

"75AL.(1) If a defendant in a liability action raises the defence that the
action goods had the alleged defect only because there was compliance with a
Commonwealth mandatory standard for them, that defendant must, as soon as
practicable after raising that defence, serve on the Commonwealth a prescribed
notice of the action and of that defence together with a copy of that
defendant's defence in the action.

"(2) Service of the notice and defence makes the Commonwealth a defendant in
the action.

"(3) If, in the action, the Court finds that the plaintiff would have
succeeded against the defendant who served the notice but for the action goods
having the alleged defect only because there was compliance with a
Commonwealth mandatory standard for them, then:

   (a)  the Commonwealth, and not the defendant who served the notice, is
        liable to pay the plaintiff for the amount of the loss caused by the
        defect; and

   (b)  the Court is to enter judgment against the Commonwealth for that
        amount; and

   (c)  the Court may make such orders for costs as the Court considers just.
        Liability joint and several

"75AM. If 2 or more corporations are liable under section 75AD, 75AE, 75AF or
75AG for the same loss they are jointly and severally liable. Contributory
acts or omissions to reduce compensation

"75AN.(1) If the loss in a liability action under section 75AD or 75AE was
caused by both:

   (a)  an act or omission of the individual who suffers the injuries
        concerned; and

   (b)  a defect of the action goods; the amount of the loss is to be reduced
        to such extent (which may be to nil) as the court thinks fit having
        regard to that individual's share in causing the loss.

"(2) If the loss in a liability action under section 75AF or 75AG was caused
by both:

   (a)  an act or omission of the person who suffered the loss; and

   (b)  a defect of the action goods; the amount of the loss is to be reduced
        to such extent (which may be to nil) as the court thinks fit having
        regard to the person's share in causing the loss.

"(3) For the purposes of this section, the acts and omissions of a person who
is responsible for another person include the acts and omissions of that other
person. Time for commencing actions

"75AO.(1) Subject to subsection (2), a person may commence a liability action
at any time within 3 years after the time the person became aware, or ought
reasonably to have become aware, of the alleged loss, the defect and the
identity of the person who manufactured the action goods.

"(2) A liability action must be commenced within 10 years of the supply by the
manufacturer of the action goods. Application of provisions not to be excluded
or modified

"75AP.(1) Any term of a contract (including a term that is not set out in the
contract but is incorporated in the contract by another term) that purports to
exclude, restrict or modify, or has the effect of excluding, restricting or
modifying:

   (a)  the application of all or any of the provisions of this Part; or

   (b)  the exercise of a right conferred by any of those provisions; or

   (c)  any liability under any of those provisions; is void.

"(2) A term of a contract is not taken to exclude, restrict or modify the
application of a provision of this Part unless the term does so expressly or
is inconsistent with that provision. Representative actions by the Trade
Practices Commission

"75AQ.(1) The Commission may, by application, commence a liability action on
behalf of one or more persons identified in the application who has suffered
the loss for whose amount the action is commenced.

"(2) The Commission may only make an application under this section if it has
obtained the written consent of the person, or each of the persons, on whose
behalf the application is being made. Saving of other laws and remedies

"75AR.(1) This Part is not intended to exclude or limit the concurrent
operation of any law, whether written or unwritten, in force in a State or
Territory.

"(2) This Part is not to be taken to limit, restrict or otherwise affect any
right or remedy a person would have had if this Part had not been enacted.
Jurisdiction of courts

"75AS. Subsection 75B(2) and sections 86, 86A and 86B operate in relation to
an action under this Part as if:

   (a)  references in them to Part VI included references to this Part; and

   (b)  references in them to Division 1 or 1A of Part V included references
        to this Part; and

   (c)  references in them to the Minister were omitted.".