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Who is Liable for a Product Defect if the Manufacturer is Unidentified?

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As a consumer, you may have concerns regarding a defective product, especially when you are unable to locate the manufacturer. The Australian Consumer Law (ACL) was enacted on 1 January 2011, creating a uniform national scheme for consumer protection and fair trading. You might have rights against the supplier or manufacturer under the ACL if you purchased a defective product. However, suppose you cannot identify the manufacturer of the defective product. This article discusses how to claim liability for defective products, especially when the manufacturer is unidentified. 

Who is a Manufacturer?

The ACL defines the term manufacturer quite broadly. Under the ACL, manufacturers include entities that are the actual manufacturers of the product and those who are deemed to be the manufacturers.

Simply put, the manufacturer of a product may be the entity that:

  • produced the product;
  • held themselves out to the public as a manufacturer of the product;
  • allowed their name or brand to be applied to the product; 
  • permitted themselves to be held out as the manufacturer by another person; or
  • imported the product into Australia, where the actual manufacturer of the product does not have a place of business in Australia.

Under the ACL, nine consumer guarantees apply to goods. The guarantees provide you with a statutory right against the manufacturer if there is a product problem. 

Who is a Supplier? 

A supplier, on the other hand, is any individual who sells goods or services in the course of trade or commerce. Examples include: 

  • traders; 
  • retailers; or 
  • service providers. 
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You Cannot Identify the Manufacturer

Suppose you have purchased a defective product and wish to make a claim against the manufacturer. However, you cannot identify or are having difficulties identifying the manufacturer of the product. If so, you can approach the supplier and request the manufacturer’s name.

The supplier has 30 days to comply with your request. Suppose, after 30 days, the supplier has yet to respond or refuses to provide you with the relevant information. In that case, the supplier themselves will be deemed the manufacturer, and you can take the same action against the supplier.

When Can I Make a Claim Against a Manufacturer?

Provisions under the ACL allow you to claim against a manufacturer where a product has a safety defect. You must consider several factors to determine if a safety defect has occurred, including:

  • the product’s quality; 
  • how the product has been represented; and 
  • loss or damage arising from the product. 

As a consumer, there are multiple ways to sue a manufacturer over damages caused by a safety defect. That said, it is generally easier for a consumer to make a claim over a defective product under the ACL than some of the other options. 

As a consumer, you have three years to bring an action from the time you become aware (or ought reasonably to have become aware) of the defect in the product. The action must also commence within 10 years of the time the manufacturer supplied the goods with the safety defects.

Remedies Against a Manufacturer

You may seek to recover damages against a product manufacturer if they fail to comply with certain consumer guarantees. However, you should note that your remedy is limited to damages (money) if an action is brought against a manufacturer.

If you have suffered loss or damage as a result of a product with a safety defect, you may make a compensation claim against the manufacturer for:

  • personal injuries which arose as a result of the defect;
  • losses relating to other consumer products; and
  • losses relating to lands, buildings or fixtures.

You should note that you may receive a partial sum when you seek compensation. For example, suppose you seek compensation of $1000. Even if the product is found to have a safety defect, the Court may not grant you the full $1000 as compensation. When the Court assesses compensation payable to you, it will consider any acts that may have contributed to the loss and reduce the amount at its discretion.

Key Takeaways

The Australian Consumer Law provides you, as a consumer, with consumer guarantees. Accordingly, these guarantees empower you to claim against a manufacturer for a defective product. However, it is important to note that not every problem with a product gives rise to a claim against a supplier or manufacturer. 

If you believe that you have received a faulty or defective product, and the supplier and/or manufacturer is not responding to your requests for a repair, refund or replacement, our experienced contract lawyers can assist as part of our LegalVision membership. For a low monthly fee, you will have unlimited access to lawyers to answer your questions and draft and review your documents. Call us today on 1300 544 755 or visit our membership page.

Frequently Asked Questions 

What can I do if I cannot identify the manufacturer who manufactured the defective product? 

You can approach the supplier and request the name of the manufacturer. The supplier has 30 days to comply with your request. 

What happens if the supplier has not responded to my request? 

If after 30 days, the supplier has not responded or refuses to provide you with the relevant information, then the supplier themselves is deemed to be the manufacturer and you can take the same action against the supplier.

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