Side-Stepping Thresholds & Defences with Consumer Protection Legislation

Australian consumers are very fortunate – we have a fantastic Consumer Protection regime which is generally well enforced by the ACCC.

What we are beginning to discover however, is that the Consumer Protection legislation, at least at face value, has much wider-ranging application than just giving you protection when you buy some dodgy groceries or a new kettle.

So what kinds of relationships between types of cases and these protections are we beginning to see?

Here are a few examples:

  • Medical treatment provided without due care and skill;
  • Adventure tours where the tour guide isn’t providing proper guidance or assistance to tourists;
  • Stores where employees are exercising proper care and skill, or the premises are unsafe, resulting in hazards being present;
  • Foodstuffs not properly prepared causing people to suffer from (potentially fatal) allergic reactions.

All of these examples have something in common: They are all types of claims ordinarily brought as ‘negligence’ claims or ‘public liability’ claims.

They also have another thing in common: They all have difficulties which must be overcome to succeed which do not necessarily arise in a Consumer Protection claim:

  • Medical negligence claims ordinarily can only succeed where the treatment that was provided was below a reasonable standard of competent professional practice (A higher threshold)
  • Adventure tours and the like can be defeated by sections of the Civil Liability Act which apply to a persons ‘voluntary assumption of risk’ (A valid defence irrespective of what the tour guide did or didn’t do).
  • There is significant case law setting out the prerequisites to succeed in ‘slip and trip’ cases which can make these cases difficult or expensive to succeed in.
  • Food claims with dangerous reactions which are run as ‘negligence’ claims all focus on whether the seller was ‘negligent’ when preparing it. If that isn’t proven, no matter how bad the outcome of ingesting it was, this claim cannot succeed.

The final (and very important) similarity: A ‘consumer contract’ relationship can exist in each case.

There are several reasons why it is worthwhile examining the Consumer Protection regime for remedies:

  1. It can be easier to succeed in these cases, particularly where you only need to prove facts of certain things happening, and on occasion the root cause of the problem;
  2. It can be possible to side-step defences available under the Civil Liability Act;
  3. Whilst maximum damages for pain and suffering are lower, the gateway threshold to claim these damages in the Consumer Protection regime is less restrictive.

How does this apply to clients? Make sure you give your lawyer all the facts about what happened in the lead up to the incident, including any transactions or purchases involved (or about to occur).

And for Lawyers? Make sure you take a complete history from your client. Consider whether any contracts were formed or contemplated between your client and the prospective Defendant or another entity. Consider whether the trade-off in potentially preparing an easier to prove case is worthwhile for the trade off in recoverable pain and suffering damages. Consider whether ‘res ipsa loquitor’ should be present but negligence might not be.


Consumer Protection Litigation – More Information or Enquiries


Don Cameron                                                             Adam Clements

02 6058 6316                                                              02 6058 6327