Product Liability

Litigation & Dispute Resolution

Litigation & Dispute Resolution » Product Liability

Adverse product liability events can have a devastating effect on brand value and can cost companies dearly in loss of revenue and trust. Strict liability laws, obligations for mandatory reporting of product associated injury and illness and prescriptive requirements for warranties against defects under the Australian Consumer Law, when combined with the global market for consumer goods, pose a significant litigation risk to manufacturers, importers, distributors and retailers. This is reflected in the increasing number of high profile class actions involving product liability claims in recent times.

Corrs understands the challenges posed by a tough regulatory environment, a competitive market and the threat of litigation and has the expertise to manage any product liability dispute strategically and effectively, using the most appropriate approach to achieve our client’s preferred commercial outcome and to minimise any reputational damage. We have acted for clients in some of Australia’s most complex and hard fought product liability matters and have extensive litigation and class action experience. We combine in-depth knowledge of the product liability framework with the know-how and resources necessary to run high stakes litigation.

Our Experts

Annette Hughes

Annette Hughes

Consultant Location Melbourne Profile
Chris Pagent.jpg

Chris Pagent

Partner Location Sydney Profile
Ian Dallen.jpg

Ian Dallen

Partner Location Sydney Profile
James Whittaker.jpg

James Whittaker

Partner Location Sydney Profile
Jim Micallif.jpg

Jim Micallef

Special Counsel Location Sydney Profile
Julia Cameron.jpg

Julie Cameron

Partner Location Brisbane Profile
Kirsty Sutherland.jpg

Kirsty Sutherland

Partner Location Perth Profile

Our Experience

BAT

Corrs has acted for British American Tobacco companies in Australia and the UK in product liability matters since 2002.

The largest of these matters was a class action brought by a plaintiff on behalf of any person who had suffered, or who may suffer, a smoking-related disease, alleging misleading and deceptive conduct.  The quantum of the relief sought in this case was put at $1 billion.

More

J&J

Corrs has acted for the Johnson & Johnson group in relation to all its Australian product liability issues for over 15 years.

We provide day-to-day advice on product liability law and have conducted product liability seminars for its staff & key customers. We have also handled several of their product liability disputes (ranging from formal superior court litigation through to informal ADR outside the court system). These disputes have centred on various personal injury claims and involve the operation, and interaction, of tort, contract and statute law on product liability.

More

Pan Pharmaceuticals

Corrs acted for the Commonwealth of Australia in the defence of the Pan Pharmaceuticals class action. The class action was one of the largest claims ever brought against the Commonwealth and centred on alleged negligence by a Federal Regulator as well as alleged misfeasance in public office by individuals employed by the Regulator.

The legal principles were complex and their application to a Federal Regulator, and its staff, were largely untested in Australia. Corrs developed and implemented a strategy that led to a commercially successful settlement of the class action at a private out-of-court mediation without any admissions as to liability.

The class action, which comprised 162 members seeking economic loss and aggravated damages, stemmed from the corporate collapse of Pan Pharmaceuticals in April 2003 after the Therapeutic Goods Administration (TGA) ordered a recall of its products and suspended its licence to manufacture therapeutic goods.

The Commonwealth was alleged to have been negligent because of the manner in which the TGA performed its regulatory functions, a number of TGA officers were alleged to have engaged in misfeasance in public office (a personal tort centred on willful misconduct, or reckless indifference, in the exercise of government powers) and the Commonwealth was alleged to have been vicariously liable for the officers conduct. The case was legally and factually complex, requiring management of Government obligations and individual sensitivities.

Corrs worked quickly and efficiently, ahead of a private out-of-court mediation, to limit the scope of the claims against the Commonwealth (successfully striking out large parts of the class action claim), to ensure that the remaining causes of action were appropriately particularised (given the extremely serious nature of the claim – especially as against the individual officers) and to successfully challenge, and have withdrawn, the key expert evidence that the class was seeking to rely upon.

The settlement reached at the mediation was without any admissions as to liability and involved the payment of $67.5m into a distribution fund from which payments could be made to each of the 162 class members. The settlement was formally approved by the Federal Court (a necessary legal requirement for any Federal Court class action settlement) and the approval judgment is one of the most recent judicial decisions in Australia on the factors that are required to be established to obtain Federal Court approval of a class action settlement.

The total quantum of the claims made by the 162 members of the class remains subject to confidentiality, although the Australian Financial Review noted the following in respect of the class action settlement (after it had been approved by the Federal Court):

“It [referring to the class action] was not a lay down misere. The pleadings of the lead applicant and two sample members show each claimed between $1 million and $8.5 million, suggesting the settlement was a small fraction of the total claimed.”

More

Soy milk class action

Corrs represented Japanese food distributor, Muso Co Ltd, in the defence of the largest personal injury class actions in Australian litigation history.

Muso, together with the manufacturer and distributor of Bonsoy, a soy milk product, were sued by a Plaintiff on behalf of a class in respect of thyroid diseases allegedly sustained or exacerbated as a result of the consumption of iodine used in the formulation of that product.

Claims were made under both Australian and Japanese law and involved cross-border issues and expert evidence on matters of foreign law and changes causation questions.

More

Our Thinking

European Lawyer Reference - Product Liability First edition 2014

It is critical for companies to have a working knowledge of the laws on product liability across the jurisdictions into which their products or component parts reach.

More Download

Australian product liability trends: Class actions & litigation funding

The Australian Federal class action regime is one of the world’s most liberal and plaintiff friendly. As a consequence Australia is second only to the US in respect of class action activity.

More Download

“Lock-up” devices put to the test - The battle for Billabong continues

Despite Billabong’s extensive sales process, the Takeover’s Panel has not allowed it to lock itself up so as to deter rival proposals.

More

Sucked in - Full Court clarifies unconscionable conduct provisions in the Australian Consumer Law in ACCC v Lux

The decision may lead to fresh scrutiny of sales tactics aimed at “sucking in” consumers to agree to sales negotiations in their homes.

More

Our Experience

BAT

Corrs has acted for British American Tobacco companies in Australia and the UK in product liability matters since 2002.

The largest of these matters was a class action brought by a plaintiff on behalf of any person who had suffered, or who may suffer, a smoking-related disease, alleging misleading and deceptive conduct.  The quantum of the relief sought in this case was put at $1 billion.

J&J

Corrs has acted for the Johnson & Johnson group in relation to all its Australian product liability issues for over 15 years.

We provide day-to-day advice on product liability law and have conducted product liability seminars for its staff & key customers. We have also handled several of their product liability disputes (ranging from formal superior court litigation through to informal ADR outside the court system). These disputes have centred on various personal injury claims and involve the operation, and interaction, of tort, contract and statute law on product liability.

Pan Pharmaceuticals

Corrs acted for the Commonwealth of Australia in the defence of the Pan Pharmaceuticals class action. The class action was one of the largest claims ever brought against the Commonwealth and centred on alleged negligence by a Federal Regulator as well as alleged misfeasance in public office by individuals employed by the Regulator.

The legal principles were complex and their application to a Federal Regulator, and its staff, were largely untested in Australia. Corrs developed and implemented a strategy that led to a commercially successful settlement of the class action at a private out-of-court mediation without any admissions as to liability.

The class action, which comprised 162 members seeking economic loss and aggravated damages, stemmed from the corporate collapse of Pan Pharmaceuticals in April 2003 after the Therapeutic Goods Administration (TGA) ordered a recall of its products and suspended its licence to manufacture therapeutic goods.

The Commonwealth was alleged to have been negligent because of the manner in which the TGA performed its regulatory functions, a number of TGA officers were alleged to have engaged in misfeasance in public office (a personal tort centred on willful misconduct, or reckless indifference, in the exercise of government powers) and the Commonwealth was alleged to have been vicariously liable for the officers conduct. The case was legally and factually complex, requiring management of Government obligations and individual sensitivities.

Corrs worked quickly and efficiently, ahead of a private out-of-court mediation, to limit the scope of the claims against the Commonwealth (successfully striking out large parts of the class action claim), to ensure that the remaining causes of action were appropriately particularised (given the extremely serious nature of the claim – especially as against the individual officers) and to successfully challenge, and have withdrawn, the key expert evidence that the class was seeking to rely upon.

The settlement reached at the mediation was without any admissions as to liability and involved the payment of $67.5m into a distribution fund from which payments could be made to each of the 162 class members. The settlement was formally approved by the Federal Court (a necessary legal requirement for any Federal Court class action settlement) and the approval judgment is one of the most recent judicial decisions in Australia on the factors that are required to be established to obtain Federal Court approval of a class action settlement.

The total quantum of the claims made by the 162 members of the class remains subject to confidentiality, although the Australian Financial Review noted the following in respect of the class action settlement (after it had been approved by the Federal Court):

“It [referring to the class action] was not a lay down misere. The pleadings of the lead applicant and two sample members show each claimed between $1 million and $8.5 million, suggesting the settlement was a small fraction of the total claimed.”

Soy milk class action

Corrs represented Japanese food distributor, Muso Co Ltd, in the defence of the largest personal injury class actions in Australian litigation history.

Muso, together with the manufacturer and distributor of Bonsoy, a soy milk product, were sued by a Plaintiff on behalf of a class in respect of thyroid diseases allegedly sustained or exacerbated as a result of the consumption of iodine used in the formulation of that product.

Claims were made under both Australian and Japanese law and involved cross-border issues and expert evidence on matters of foreign law and changes causation questions.

Our Thinking

European Lawyer Reference - Product Liability First edition 2014

It is critical for companies to have a working knowledge of the laws on product liability across the jurisdictions into which their products or component parts reach.

Australian product liability trends: Class actions & litigation funding

The Australian Federal class action regime is one of the world’s most liberal and plaintiff friendly. As a consequence Australia is second only to the US in respect of class action activity.

“Lock-up” devices put to the test - The battle for Billabong continues

Despite Billabong’s extensive sales process, the Takeover’s Panel has not allowed it to lock itself up so as to deter rival proposals.

Sucked in - Full Court clarifies unconscionable conduct provisions in the Australian Consumer Law in ACCC v Lux

The decision may lead to fresh scrutiny of sales tactics aimed at “sucking in” consumers to agree to sales negotiations in their homes.

Our Experts

Annette Hughes

Annette Hughes

Consultant Melbourne +61 3 9672 3506
Chris Pagent.jpg

Chris Pagent

Partner Sydney +61 2 9210 6162
Ian Dallen.jpg

Ian Dallen

Partner Sydney +61 2 9210 6243
James Whittaker.jpg

James Whittaker

Partner Sydney +61 2 9210 6667
Jim Micallif.jpg

Jim Micallef

Special Counsel Sydney +61 2 9210 6714
Julia Cameron.jpg

Julie Cameron

Partner Brisbane +61 7 3228 9461
Kirsty Sutherland.jpg

Kirsty Sutherland

Partner Perth +61 8 9460 1620