Nick Dowse Persons Injured By Defective Goods
Persons Injured By Defective Goods (TPA) – Structure of Answer
1. X may want to bring an action against the manufacturer because the defective goods have injured
2. Part 5A TPA establishes a regime of strict liability for defective goods, so no negligence need be
proved, and no contractual relationship between the person injured and the manufacturer is
a. Cannot be contracted out of (s 75AP).
3. There is no need for an intermediary, so it doesn’t matter if the person injured bought direct from
the manufacturer, a reseller or distributor, bought them 2 hand or received them as a gift.
4. In fact, the person bringing the action need not have title or any ownership or even possession of
the defective goods.
a. The defendant must be a corporation; and
b. In trade or commerce; and
c. It must have supplied goods which were manufactured by it; and
i. Manufactured is defined in s 75AA to include grown, extracted, produced, processed
ii. Includes “deemed” manufacturers (s 75AB, s 75AJ TPA)
1. A corporation will be deemed to be the manufacturer (for the purposes of Div
a. The corp holds itself out to the public as the manufacturer of goods (s
b. A corp causes or permits the name of the corp to be applied to the
goods supplied (s 74A(3)(b)); or
c. The corp causes or permits another person in connexion with the
supply or possible supply of goods by the other person, or in
connexion with promotion by that other person by any means, of the
supply or the use of the goods, to hold out the corp to the public as the
manufacturer of the goods (s 74A(3)(c)); or
d. Goods are imported by the corp, and at the time of importation, the
actual manufacturer does not have a place of business in Australia (s
iii. If plaintiff doesn’t know manufacturer, can serve notice on corporation that supplied,
and corporation must give details of manufacturer. If don’t, will be deemed to be the
manufacturer for the purposes of the action (s 75AJ(2)).
d. The goods must have a defect.
i. Goods have a defect if their safety is not such as person generally are entitled to
expect (s 75AC(1))
ii. This requires application of the “consumer expectation” test
iii. Test applied objectively, based on reasonable expectation of public, not of the
particular individual injured.
iv. Includes design, manufacturing, and instructional defects (Hazell v Getz)
v. In judging the safety of the goods, the court will consider:
1. The marketing of the goods (s 75AC(2)(a))
2. Their packaging (s 75AC(2)(b))
3. The use of any trade name relating to them (s 75AC(2)(c))
4. The instructions or warnings given (s 75AC(2)(d))
5. What might reasonably be expected to be done with