Tertiary education program

When do goods have a 'safety defect'?

Goods have a 'safety defect' if they are not as safe as persons generally are entitled to expect them to be. This is determined by reference to the level of safety the community is entitled to expect considering all relevant circumstances, including:

  • the manner and purpose for which the goods are marketed
  • packaging, instructions and warnings accompanying the goods
  • the expected uses of the goods
  • the time when the goods were supplied
  • other factors such as the price of the goods, whether the goods are inherently dangerous and whether an intermediary will be involved (for example, a pharmacist, explaining to consumers the proper use of a prescription drug, rather than the manufacturer).

As a result, goods can be unsafe even though they are not actually defective. For example, they may not be accompanied by a warning notice or packaged appropriately. On the other hand, they can be safe even though they are not of acceptable quality (see Consumer guarantees) or absolutely free from risk.

Case studies

  1. A manufacturer of caustic soda was held liable because it did not warn consumers of the danger of mixing the product with hot water. Although the caustic soda was not defective, it was unsafe without such a warning.

    See: ACCC v Glendale Chemical Products Pty Ltd [1998] FCA 180
     
  2. A manufacturer of a garage roller door was held liable for injuries sustained by a consumer as a result of the door coming off its mountings and falling on her. Liability arose because the manufacturer's installation instructions were inadequate.

    See: Skerbic v McCormack & Ors [2007] ACTSC 93