A recent decision concerning an appeal by BMW Australia Ltd (BMW) serves as a powerful reminder there is not much room for deviation where product safety standards are concerned—slight variations to mandated warnings may result in a breach of the Trade Practices Act.
BMW labelled its vehicle jacks with a warning that differed from the wording used in the mandatory standard. The Court found that BMW's warning was not 'to the same effect' as the warning in the mandatory standard (Standard).
What warning did the Standard require?
The relevant Standard requires vehicle jacks to be labelled:
'WARNING: DO NOT GET UNDER A VEHICLE THAT IS SUPPORTED ONLY BY A JACK: USE VEHICLE SUPPORT STANDS.'
The Standard also allowed for words 'to the same effect' to be used.
The evidence showed that the design of the BMW 318i made it unsuitable to be supported by vehicle support stands. In these circumstances BMW felt it prudent to vary the warning used on its vehicle jacks:
'WARNING: DO NOT GET BODILY UNDER A VEHICLE THAT IS SUPPORTED BY A JACK!'
BMW argued that:
it had used words that were 'to the same effect' as the mandatory warning, and
the Standard and the Trade Practices Act (which made the Standard mandatory) required only such warnings as were reasonably necessary to prevent or reduce the risk of injury to any person.
Why wasn't BMW's warning 'to the same effect' as the mandatory warning?
The Court ruled that in omitting the reference to vehicle support stands and the word 'only', BMW's warning was not 'to the same effect' as the mandatory warning. Use by BMW of the term 'bodily' may also have been another factor which meant that the warnings were not 'to the same effect'. The Court held that the reference to vehicle support stands is an important part of the safety message and should not be omitted.
Whilst noting BMW's concern for the safety of its customers, the Court was influenced by the fact that the wording of the mandatory warning was a matter that had been considered important by the expert committee which formulated the standard. The Court was reluctant to second guess these experts, but noted that in the context of this particular vehicle, some special warning may be required when reference is made to vehicle support stands. However, the appeal Court did not decide what that additional warning should be.
In deciding that the warnings were not 'to the same effect', the appeal Court also decided that the remedies originally ordered were not appropriate and asked the original judge to reconsider them. The resulting orders are expected later this year.
What steps should manufacturers and suppliers take as a result of this decision?
In the wake of this decision, manufacturers and suppliers of products covered by product safety standards should review their compliance with those standards. Particular attention should be given to the wording of mandatory warnings.
If you require assistance with this process, or would like further information about the issues and risks involved, please contact Eleanor Scacco.
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A term of a consumer (and small business) contract will be void if unfair and the contract is a standard form contract.
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