Section 4B of the Competition and Consumer Act 2010 (Cth) (‘CCA’) creates a presumption that a person was a consumer in relation to particular goods or services unless it is proven otherwise. Section 3 of Schedule 2 to the ACL is The Australian Consumer Law (‘ACL’) and it defines a consumer as a person who acquired goods or services of a kind ordinarily acquired for personal, domestic or household use or that did not cost more than $40,000 and repeats the presumption that a person was a consumer in relation to particular goods or services unless it is proven otherwise. This $40,000 threshold has been increased by r 77A of the Competition and Consumer Regulations 2010 (Cth) to $100,000 for supplies made from 1 July 2021. This is significant because the CCA applies to companies because of the Commonwealth’s constitutional corporations power, but not to individuals (with some exceptions). However, s 16 of the Fair Trading Act 1989 (Qld) applies the ACL as a law of Queensland, which then applies it to individuals. There is no requirement that for there to be a ‘supply’ there must be a contract between the consumer and supplier.
Section 7 of the ACL deems a manufacturer to include an importer of goods into Australia who is not the manufacturer, if the manufacturer does not have a place of business in Australia.
Time limit for personal injury claim
Section 87E in Part VIB of the CCA applies time limits in s 87F to personal injury Court proceedings under the ACL:
- Part 2‑2: Unconscionable conduct: ss 20-22A.
- Part 3‑3: Safety of consumer goods and product related services: ss 104-133.
- Part 3‑4: Information standards: ss 134-137B.
- Part 3‑5: Liability of manufacturers for goods with safety defects: ss 138-150.
- Division 2 of Part 5‑4: Action for damages against manufacturers of goods: ss 271-273.
Notably, there is no reference in s 87E of the CCA to a time limit for a claim based on a failure to comply with a statutory guarantee under ss 60 and 61 of the ACL, which are in Part 3-2 of the ACL and cover statutory guarantees as to services being provided to consumers with due care and skill or that are fit for a particular purpose. This does not mean there is simply no time limit for such claims. Section 275 of the ACL applies to failures to comply with statutory guarantees in ss 60 and 61 under Part 3-2 of the ACL and if State law is the proper law of the contract, State law applies to ‘limit or preclude liability for the failure, and recovery of that liability (if any), in the same way as it applies to limit or preclude liability, and recovery of any liability, for a breach of a term of the contract for the supply of the services.’ Section 11 of the Limitation of Actions Act 1974 (Qld) (‘LAA’) will have its usual application for the 3 year time limit for causes of action for personal injury against companies and individuals. Moore v Scenic Tours Pty Ltd [2020] HCA 17 contains principles that can probably be applied to this issue and with the application of the Civil Liability Act 2003 (Qld), which contains restrictions on quantum of damages for personal injury.
Part VIB of the CCA contains sections 87D to 87ZC which also set out many rules for assessing quantum of personal injury damages. However, they do not apply to claims based on ss 60 and 61 of the ACL which are in Part 3-2 of the ACL and to which Part VIB of the CCA does not apply because of s 87E in Part VIB of the CCA.
Claims based on defective services
Section 60 of the ACL states that ‘If a person supplies, in trade or commerce, services to a consumer, there is a guarantee that the services will be rendered with due care and skill.’
Section 61 of the ACL states that if a consumer who has expressly or by implication made known to a supplier any particular purpose or result for which services are being acquired, then a supply of those services in trade or commerce imposes a guarantee by the supplier that ‘the services, and any product resulting from the services, will be reasonably fit for that purpose‘ and that ‘the services, and any product resulting from the services, will be of such a nature, and quality, state or condition, that they might reasonably be expected to achieve that result.’ This does not apply to professional services by qualified architects or engineers and does not apply if the consumer did not rely on or it was unreasonable for the consumer to rely on the skill or judgment of the supplier.
Section 236 of the ACL contains a cause of action for damages for personal injury based on contravention of Chapter 2 or 3 of the ACL. Sections 60 and 61 are in Chapter 3 of the ACL. However, they impose statutory guarantees, not prohibitions or duties. A guarantee is not ‘breached’; it simply triggers a liability when it is not complied with. It is important to know this as s 236 gives a 6 year from cause of action time limit to commence proceedings, that will not apply to a claim based on ss 60 and 61.
Section 267 of the ACL contains a cause of action for failure to comply with statutory guarantees under ss 60 and 61 of the ACL regarding provision of services to a consumer. Notably, a claim under s 61 cannot be based on the conduct of a person other than the supplier, which is said to include agents and employees of the supplier. This implies that a claim under s 60 or s 61 of the ACL can be made against the employee of the entity with whom the consumer contracted for a supply.
Summary
Generally, in an iatrogenic (injury caused by medical services or by a doctor) personal injury claim based on ss 60 and/or 61 of the ACL, against a company or individual (but not a public hospital if it is not supplying medical services in trade or commerce), there will be a 3 year LAA time limit to commence Court proceedings, a failure to comply with statutory guarantees under ss 60 and/or 61 that gives rise to a cause of action under s 267 of the ACL, and where the Civil Liability Act 2003 (Qld) will apply to limit quantum.
This is not comprehensive advice to cover all scenarios that may apply. However, it is a good starting point to understand iatrogenic ss 60 and 61 ACL claims.
If there is a duty of care in negligence and the claim is only for a breach in the provision of services, then s 60 of the ACL might not be useful. This is because in Lets Go Adventures Pty Ltd v Barrett [2017] NSWCA 243, ‘the standard set by the guarantee of “due care and skill” could properly be equated with the common law duty to take reasonable care, if the scope of the services was adequately identified.’ The position is different for a claim based on s 61 of the ACL though because there may have been a relevant purpose for the services that extends the operation of s 61 beyond a duty of care in negligence.
Finally, it is necessary to consider whether going after every entity who was or might have been involved in causing the injury is really necessary. For example, in a case with CTP insurance, a very safe form of insurance, if you are sure it covers the injury, then pursuing many individual defendants rather than just their CTP insured employer, might open the plaintiff up to unnecessary risk of winning against some defendants but losing against others, potential adverse cost risk or reduction in the extent of recoverable costs for the successful parts of the claim.