Serious injury or illness
Notices given by a supplier to the minister
On January 1 2011 the Trade Practices Act 1974 (Cth) was renamed the Competition and Consumer Act 2010 (Cth). The Consumer Law forms part of the renamed act. Part 3-3 of the law (regarding safety of consumer goods and product related services) introduces a new reporting obligation for suppliers.
The new reporting obligation applies to suppliers of 'consumer goods' - namely, those that are intended to be used, or are of a kind likely to be used, for personal, domestic or household use or consumption. Where recall action has occurred, this includes any such goods that have become fixtures since the time they were supplied. There is no upper monetary limit in the definition of 'consumer goods'.
A supplier of consumer goods is required under Section 131(1) of the law to give the relevant commonwealth minister notice when it becomes aware of the death or serious injury or illness of any person and:
- considers that the death or serious injury or illness was caused, or may have been caused, by the use or foreseeable misuse of the consumer goods; or
- becomes aware that a person other than the supplier considers that the death or serious injury or illness was caused, or may have been caused, by the use or foreseeable misuse of the consumer goods.
In practice, the notice is given to the Australian Competition and Consumer Commission (ACCC). This means that a supplier may need to file a report as a consequence of a consumer report of a death, injury or illness.
Notice must be made within two days of a supplier becoming aware of the death or serious injury or illness. A supplier that fails to notify the minister may be found guilty of an offence and be liable to a pecuniary penalty (A$16,650 for a corporate body or A$3,330 for a natural person).(1) This is an offence of strict liability, meaning that a court is not required to consider whether a supplier intended to notify the minister before finding it guilty of this offence.(2)
A supplier is required to report the necessary information to the minister only on the first occasion that it becomes aware that the consumer goods in question caused, or may have caused, a death or serious injury or illness. However, a supplier should provide the minister with any additional information it obtains.(3) The death, serious injury or illness may have occurred to a person in Australia or elsewhere.(4)
This new reporting obligation represents a key departure from the former Trade Practices Act 1984 (Cth), in which the only general reporting requirement was for a corporation to notify the minister about a recall after the recall had been initiated.(5)
According to the law, 'serious injury or illness' is defined as an acute physical injury or illness that requires medical or surgical treatment by, or under the supervision of, a medical practitioner or a nurse (whether or not in a hospital, clinic or similar place). It does not include an ailment, disorder, defect or morbid condition (whether of sudden onset or gradual development), or the recurrence or aggravation of such an ailment, disorder, defect or morbid condition.
However, a supplier is required to notify the minister if one of its consumer goods causes death, serious injury or illness requiring medical treatment of a person with a pre-existing sensitivity.(6)
Under the ACCC's published guidance, a serious injury or illness includes:(7)
- an external physical injury, such as a serious burn, deep cut, broken bone, choking or serious fracture;
- an internal injury, such as internal bleeding;
- an acute illness, such as poisoning;
- a severe allergic reaction, such as anaphylaxis or contact dermatitis;
- choking on food packaging;(8) and
- incidents where liquor is believed to have directly caused serious injury or illness (or death), such as severe alcohol poisoning.(9) According to the ACCC, incidents where alcohol is believed to have contributed by influencing a person's behaviour do not need to be reported.
It does not matter who in the organisation learns of the serious illness, injury or death - the ACCC guide cites as an example a shop assistant being told about an incident.
Notices given by a supplier to the minister
Section 132A of the law requires that notices be treated as confidential unless the reporting supplier consents. However, confidentiality of notices is not guaranteed.
The minister may disclose information to other government ministers or to other regulators. The minister may also disclose the contents of a notice if:
- it is in the public interest;(10)
- it is required or authorised by or under law;(11) or
- it is reasonably necessary for the enforcement of the criminal law or of a law imposing a pecuniary penalty.(12)
A supplier should avoid making admissions of fact in notices it provides to the minister as, although the law includes confidentiality provisions, there is no statutory reason why a notice's contents could not be taken as an admission of fact.
Section 131(2) of the law provides exemptions to the reporting obligation. A supplier of consumer goods is not required to give the minister notice if:
- it is clear that the death or serious injury or illness was not caused by the use or foreseeable misuse of the consumer goods or 'very unlikely' that it was so caused; or
- the supplier, or another person, is required to notify the death or serious injury or illness in accordance with another Australian law or an industry code specified in the regulations.
Currently no industry codes are specified in the regulations.
The current legislative exceptions relate to reporting requirements under a variety of legislation, including:
- various state and territory Public Health Acts which impose reporting requirements on health practitioners for notifiable diseases;
- Road Transport Acts for accidents on public roads;
- Coroners Acts;(13)
- the Agricultural and Veterinary Chemicals Act 1994 (Cth) and the Therapeutic Goods Act 1989 (Cth), which requires reporting of adverse events arising from medicines or drugs; and
- the Food Regulations 2009 (WA). This regulation covers the food industry in the state of Western Australia and imposes reporting requirements.
The exemptions will not necessarily relieve food and beverage suppliers from mandatory reporting in the case of reports of food poisoning. For example, under the Public Health Act 1991 (NSW), a medical practitioner is required to notify the director-general about a food-borne illness upon becoming aware of two or more related cases.(14) A food supplier would be exempt from reporting such an incident. A food supplier, however, may still be compelled by the law to notify the minister about a food-borne illness where it is aware of an individual case only.
If a food supplier becomes aware that a person has become seriously ill after consuming its product, although it may not be clear that the illness is in fact food related - and testing of the product may take some days - the supplier would still be obliged to report the illness. The ACCC guide warns that suppliers should be very cautious about choosing not to report incidents, stating that "if there is doubt about whether to report an incident, it is appropriate to report it".(15)
Additionally, there appears to be some confusion about when a supplier must provide notice to the minister in accordance with Section 131(1) of the law. The law provides that a supplier must give written notice to the minister within two days of becoming aware of an incident. The ACCC guide states that this two-day period does not include the day on which the supplier becomes aware of the incident, and that if the due date falls on a Saturday, Sunday or public holiday, then the reporting period is extended until the next business day.(16) However, according to the ACCC's product safety publication,(17) a supplier must notify the minister within 48 hours.
The ACCC has imposed new and onerous updating requirements on suppliers to notify to the ACCC consumer complaints of serious injury, illness or death which may be connected to consumer goods. Suppliers of consumer goods must ensure that they have policies and a compliance programme in place, so that when consumer complaints are received, or an employee otherwise learns of an incident which may be reportable, the information is promptly passed to a designated person within the business who can decide whether reporting is required. Determining whether the incident is reportable or exempt may be difficult and businesses should seek internal or external legal advice if necessary.
For further information on this topic please contact Moira Saville or Mandi Jacobson at Mallesons Stephen Jaques by telephone (+61 2 9296 2000), fax (+61 2 9296 3999) or email ([email protected]).
(1) Competition and Consumer Act 2010 (Cth), Section 202(1).
(3) "A guide to the mandatory reporting law in relation to consumer goods", ACCC, December 2010, p4.
(5) Trade Practices Act 1984 (Cth), Section 65R.
(6) "A guide to the mandatory reporting law in relation to consumer goods", ACCC, December 2010, p5.
(10) Competition and Consumer Act 2010 (Cth), Section 132A(2)(b).
(13) Coroners Act 1997 (ACT), Coroners Act 2009 (NSW), Coroners Act (NT), Coroners Act 2003 (Qld), Coroners Act 2003 (SA), Coroners Act 1995 (Tas), Coroners Act 2008 (Vic) and Coroners Act 1996 (WA); as well as regulations made under these acts.
(14) Public Health Act 1991 (NSW), Section 14.
(15) "A guide to the mandatory reporting law in relation to consumer goods", ACCC, December 2010, p8.
(17) "Product Safety, A guide for business and legal practitioners", December 23 2010, p16.