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Asbestos product imports highlight need to understand product liability rights

    Children in car playing with toys
    26 November 2021

    Despite the 20-year ban on the importation and use of asbestos, it’s still slipping past our borders in product imports, putting even our children at risk of exposure.

    This brings to light the importance of understanding product liability and Australian Consumer Law and your right to compensation if affected by a defective or unsafe product.
     

    Asbestos importation and exportation are prohibited


    Australia was once one of the world’s highest consumers of asbestos before concerns surfaced about its health risks. A strict nation-wide ban was imposed on all use, imports and exports of asbestos containing material in 2003.*

    Since then, more than 60 other countries also introduced bans, although many still allow low levels of certain types of asbestos despite the known threat to our health – particularly in Asia.

    In fact, in China, a product can be declared “asbestos-free” even if it contains up to five per cent of asbestos material. The Australian Border Force (ABF) reports that “such goods are not allowed to be imported into Australia, except in very little circumstances”.

    However, China recently made the news when it was found to have shipped asbestos-laden plasterboard and children’s toys into Australia.

    This news serves as a reminder of your rights around product liability and Australian Consumer Law. 
     

    Understanding product liability and quality and safety laws

    What is product liability?


    Product liability laws concern who’s responsible for injuries or damages from faulty or unsafe products. 

    In Australia, the laws are a mix of common law and Federal and State legislation that assert it’s generally always the manufacturer or supplier that’s liable for placing a faulty product into your hands.

    Each state and territory has their own law around actions against negligence and product liability, so the degree of accountability may change depending on which state the incident occurred in.

    Claims for compensation, however, are normally debated from common law and Australian Consumer Law under Schedule 2 of the Competition and Consumer Act 2010 (Cth), which is where the consumer guarantees are found.
     

    What is a safety defect?


    The standards of product quality and safety are set out in the legislation for Australian Consumer Law, which gives a certain responsibility to manufacturers and suppliers of goods that a standard of product quality and safety must be met.

    Defective and unsafe products are the cause of thousands of injuries each year in Australia.

    Essentially, a product has a safety defect if it doesn’t meet the level of safety that’s generally expected by the community (although it is ultimately up to the courts to determine whether there is actually a fault). There are also guarantees regarding products not fit for purpose or not of acceptable quality.

    In the case of an injury or loss because of a faulty product, a court will consider factors such as:

    • The purpose of the product, how it’s marketed
    • Packaging and instructions and warnings
    • How the product was used, and its expected use


    Examples of safety defects include:

    • Faulty household appliances and other goods
    • Defective machinery or technological devices
    • Faulty medical implants or dangerous chemical products


    Note: Older products can’t be looked at the same way as newer ones as their expected standard of safety differs.
     

    Consumer compensation claims / Do I have a product liability claim?


    To be able to bring a compensation claim against a manufacturer or distributor, you need to prove that they provided a product that was unsafe, defective or didn’t come with the appropriate warnings – and that it caused you loss or damage.

    It’s important to note that just because a product is faulty or defective, doesn’t mean you can claim. You need to have suffered a loss because of it, such as:

    • Injury or death
    • Economic/financial loss 
    • Damage to other possessions


    It’s also worth noting that the accepted level of safety for products is constantly changing. We recommend seeking legal advice if you’re negatively affected by a defective product.

    If affected by a faulty or unsafe product, you could be compensated for:

    • Past and future medical expenses
    • Past and future loss of earnings
    • Pain and suffering
    • Domestic assistance

    * The legislation that governs the import and export of asbestos are the Customs (Prohibited Imports) Regulations 1956 and the Customs (Prohibited Exports) Regulations 1958.