Happy 15th birthday, Part VA TPA! Australia's product liability morass

Abstract

In early 2007, the Productivity Commission embarked on a public Inquiry into Australia's Consumer Policy Framework. This article argues that a core aspect, product liability of manufacturers for their defective goods, has become a legal morass. Multiple causes of action persist: common law negligence (including a little-noticed revival of claims for breach of statutory duty); TPA claims on a contractual basis; and TPA Pt VA claims on a strict liability basis, modelled on the EC Product Liability Directive (generally understood as a statutory tort). The picture is further complicated by state legislation, and various ‘tort reforms’ implemented differently in various states and in the TPA since 2002. Case law has also slowly built up, even under TPA Pt VA since it was enacted in 1992. However, it has been little analysed, and does not draw much on judgments or commentaries analysing similar provisions in Europe or indeed the Asia-Pacific region. Australia's tort reforms are likely to significantly close off opportunities for claimants to bring allegations of defective products before the courts, who might then begin addressing the ever-growing complexities. This is true even for class actions, also introduced into Australian federal courts in 1992, and generating their own complications. The resultant higher transaction costs cannot be good for manufacturers and their insurers, nor for most consumers.