Canadian case law: Arora et al v Whirlpool Canada LP and ...

2012 . Vol 22 No 10Contentspage 296 Mass torts in the United StatesPaul D Rheingold RHEINGOLD, MCCARTNEY &GIUFFRA LLPpage 299 Canadian case law: Arora et al v Whirlpool CanadaLP and Whirlpool CorporationDaniel Stern BLAKE, CASSELS & GRAYDON LLPpage 302 Consumer law and policy developments in NewZealand — an excerpt from the upcoming“Consumer Law and Policy in Australia andNew Zealand” (Federation Press, 2013)Kate Tokeley VICTORIA UNIVERSITY OFWELLINGTON, NEW ZEALANDpage 311 Index to volume 22Table of articles;Table of cases;Table of statutes.Editorial PanelPeter O’Donahoo Partner, AllensJames Whittaker Partner, CorrsChambers WestgarthStephen White Partner, CarterNewellOverseas CorrespondentsRod Freeman Partner, Hogan LovellsInternational LLP, LondonProfessor Dr Thomas KlindtNoerr LLP, MunichSimon Pearl Partner, DAC BeachcroftLLP, LondonPaul RheingoldRheingold Valet & Rheingold, NewYorkLexisNexis welcomes submissions tothis newsletter. Please send proposalsto the editor, Dominique Kane, atdominique.kane@lexisnexis.com.au.Information contained in this newsletter is current as at October 2012

Mass torts in the United StatesPaul D Rheingold RHEINGOLD, MCCARTNEY & GIUFFRA LLPMy topic is happenings in the field of mass torts inthe United States. I know that in many ways litigation inAustralia has been tracking what happens in our country.I am drawing on my experience in these cases, especiallyas to drugs and devices, practising from theplaintiff’s side.New mass tortsFor the most part, when we think of mass torts here,we think of cases that have been congregated in federalmultidistrict litigation, pursuant to 21 USC s 1407(a).The following are ones recently granted MDL status:• Actos, an antidiabetic drugs, suits claiming bladdercancer. MDL 2299, Re Actos (Pioglitazone)Products Liability Litigation, WDLa. Currentlythere are about 1000 cases pending, either transferredfrom other federal courts or directly filed.(Allowing plaintiffs to file directly in the MDLproceeding is a relatively new procedure, as thepermission to file numerous cases in one complaint,which is also allowed.)• Fosamax, a drug for osteoporosis, where the claimis that it causes atypical femur fractures. MDL 2243Re Fosamax (alendronate sodium) Products LiabilityLitigation (No II), DNJ Note that there isanother, long running MDL for a different Fosamaxclaimed injury, osteonecrosis of the jaw.• DePuy hip replacement, a device which involvesboth a metal ball and femur insert, where the claimis that metal shavings are created, causing variousillnesses, one of which is named “metallosis.”MDL 2197, Re DePuy Orthopaedics, Inc ASR HipImplant Products Liability Litigation, NDOh.• Pelvic mesh, used to suspend lapsed organs. Sincethere were multiple manufacturers of these products,separate MDLs were created and all sent toone judge in DWVa this year.• Zoloft, a drug for depression, where the claims forbirth defects. MDL 2342, Re Zoloft (sertalinehydrochloride) Product Liability Litigation, EDPa.• Propecia, used for loss of hair, where the sideeffects claimed are related to male sexual performance(and also for Proscar). MDL 2331, RePropecia (Finasteride) Product Liability Litigation,EDNY.As most down under lawyers in this field know, wehave two court systems. Cases may remain where theyare filed in a state court and not get directly involved ina federal MDL. (The most common reason is that theproduct defendant is located in the state where the suit iscommenced.) Hence, much mass tort litigation is carriedon state courts. New Jersey is a very popular state forsuch mass litigation since many manufacturers havetheir main place of doing business there.Thus we have the ever-increasing phenomenon ofparallel litigation, suits in two or more venues involvingthe same product. Sometimes, the majority of the casesare in the state system, such as for the Fosamax cases.The federal and state litigations are inevitably coordinatedto some degree, but this can range (due to what Imight call “political” factors) from the federal dominatingto the particular state court managing its own casesseparately.It sometimes happens that the Judicial Panel onMultidistrict Litigation (JPML) declines to create anMDL, usually on the bases either that there are currentlytoo few suits, or the issues are too case specific. A recentexample of that is litigation involving the da Vincisurgical robot, made by Intuitive Surgical. Even withdenial of consolidation, the litigation for a product maycontinue on a case-by-case basis but with voluntarycoordinated discovery. The claims here are based onbowel burns and organ tears due to electrocautery arcingproblems with the robotic arms.More details and many examples of the issues discussedin this section are covered in my book, LitigatingMass Tort Cases (2006 with annual supplement), publishedby West — a division of Thomson Reuters.Major developments in MDL proceedingsIt often happens that legal issues, which could aseasily arise in individual case litigation, are dealt withfirst or more definitively in mass tort litigation. Examplesare the law relating to pre-emption and also the admissibilityof expert testimony (called “Daubert” in shorthand).296australian product liability reporter October 2012

The hottest legal topic today is the scope of the USSupreme Court decision in PLIVA, Inc, v Mensing 131SCt 2567 (2011). Here in a convoluted (and, in my view,wrong) decision, the majority (5–4) held that a genericmanufacturer of a drug could not be held liable for theomission of a warning in its labeling, if it was justmimicking previously approved labeling for the brandname version.The impact of Messing has been to lead many courtsaround the country, state and federal, to dismiss wholesaleall litigation pending against the generic maker. Forexample, the litigation against the generic suppliers ofReglan and Darvon has been so far thrown out. Othercourts have applied more scrutiny to the specific issues,and for example held that Mensing applies only tolabeling issues, and not to claims of design or manufacturingdefect.In the Daubert arena, a decision last year from theFirst Circuit Court of Appeals in garnering attentionbecause of the judicial sanctioning of the methodologyused by the plaintiff’s expert in giving an opinion that aspecial form of leukemia (APL) was caused by exposureto benzene. Milward v Acuity Specialty Products Group,Inc 639 F3d 11 (1st Cir 2011). The expert based hisopinion on causation in part on a “weight of theevidence” approach. This derived from the famousBradford Hill article of 1965, which allowed an inferenceas to the role of toxic substance played based uponplausibility, strength of association, dose-reponse, andso on. The defendant’s challenge to this approach wasthat it did not prove causation, only a possible association.Almost too overwhelming an area to tread into in thisarticle is discovery and production of electronicallystored documents. While any litigation, anywhere in theworld, may well involve the production of emails, phonetexts, and whatever else may be invented tomorrow,mass tort litigation presents the problems acutely. Routinelynow in new mass torts, such as those listed above,the defendant turns over million upon millions ofdocuments. Often this is per custodian. Various courts(and a few legislatures) have attempted to devise rulesand practices for discovery of ESI, and the format ofdisclosure. In the past few years, mass tort plaintiff’slawyers have been turning to outside services whichhave enhanced software to do relevant searches.Resolution of mass tortsTo the practitioner, the most interesting topic in masstort litigation is resolution, aka settlement. Most MDLsend in settlements, of course, where the strength of thecases may dictate the amounts. Difficulties in provingcausation or liability obviously depress the valuation,whereas “punitive damages” type conduct helps to keepindividual case values high.The most recent trend in settlement of cases has thename of “inventory” settlements — the defendant approachesa law firm which has a number of cases and seeks towork out a settlement of all the cases which the firm has.This may be done on a confidential basis, whereby therates each firm gets for a particular type of case maydiffer, or on a pre-arranged evaluation by defendant (asort of unwritten grid). Often a new law firm is hired bythe defendant to do this negotiation, separate from theone which previously had aggressively handled thelitigation.The most current example of settlement of a largenumber of cases is in the Yaz litigation, involving birthcontrol pills containing drospirenone, made by Bayer.These products were called Yaz, Yasmin and Ocella.(This was in an MDL in Ilinois.) Just as the first case wascoming to trial January of this year, defendant agreed tolaunch a comprehensive settlement plan, for cases infederal or state court, but on the inventory basis justdescribed. Over 10,000 cases are involved, and areslowly settled. Delay is created by the need to resolveliens for health care payments, both governmental andprivate insurance carriers.This process is currently being carried out by a visitby a lawyer from the law firm hired to settle cases, inwhich offers are made. These purport to be standardsums, paid elsewhere. No confidentiality is required,making it a somewhat transparent process. However,problems may arise about whether lump sum settlementsare being made and how amounts are spread amongclients.The offers are being made only one subset of theinjuries claimed, however: clotting effects — pulmonaryembolism and DVT, plus stroke. There are also a largenumber of claims for gallbladder injuries, on whichdefendant so far refused to negotiate. Here the causationevidence may be somewhat weaker. A further problemyet to be faced is injuries from the many genericversions of drospirenone containing pills.The inventory process may be contrasted with a gridtype of settlement, as used in the Vioxx cases. The gridis more efficient and more even handed; once the facts ofthe claim are known, the case can be fit into a pigeonhole.However, it is more expensive, since usually athird-party administrator system is needed to determineobjectively the facts of each case.ConclusionMass tort litigation is alive and well in the US. Thisis especially so as to drugs, with the exception of thegenerics. It is somewhat less vibrant for medical deviceaustralian product liability reporter October 2012 297

cases, where fully developed and tested devices may besubject to preemption defenses.Paul D RheingoldSenior PartnerRheingold, McCartney & Giuffra LLPNew York City, United Statesprheingold@rheingoldlaw.comAmerican firm Rheingold, McCartney & Giuffra LLPrepresents plaintiffs in mass tort product cases includingdrugs, devices, automobiles and machines. Rheingold isSenior Partner, and is a cum laude graduate of HarvardLaw School. He has never been to Australia. The authorcan be contacted via the email address listed above andis happy to try to answer inquiries.298australian product liability reporter October 2012

Canadian case law: Arora et al v WhirlpoolCanada LP and Whirlpool CorporationDaniel Stern BLAKE, CASSELS & GRAYDON LLPJustice Perell of the Superior Court of Justice inOntario, Canada recently dismissed the plaintiffs’ classcertification motion in Arora et al v Whirlpool CanadaLP and Whirlpool Corporation, 1 on the basis, in part,that there can be no recovery in a product liabilitynegligence action for pure economic losses against themanufacturer of a non-dangerous consumer product.BackgroundClass actions are permitted in all provinces in Canada,with nine out of ten provinces having enacted specificclass action legislation.In most of the provinces that have enacted specificlegislation other than Quebec, an action can be certifiedas a class action if the plaintiff can establish that (a) thereis a sustainable cause of action (which will be assessedbased on the pleadings alone), (b) there is an identifiableclass with two or more persons, (c) the claims of thosepersons have substantial issues of fact or law in common,(d) a class action is the preferable procedure forresolving the common issues having regard to theobjectives of the legislation — access to justice, judicialeconomy and behaviour modification, and (e) the proposedrepresentative plaintiff can adequately representthe interests of the class.In this case, the named plaintiffs sought to representa class of persons who owned front-loading washingmachines manufactured by the defendants between 2001and 2008. The plaintiffs alleged that the washing machinessuffered from a design defect that led to buildup ofbiofilm, mould, mildew and bacteria. The pleadingsalleged that biofilm buildup led to a variety of healthproblems as a result of exposure to “toxins and allergens.”However, plaintiffs’ counsel argued the motion onthe basis that the defendants were liable in negligencefor the class members’ pure economic losses. In additionto the claims based on negligent design, the plaintiffsalso alleged negligent failure to warn, breach of warranty,and misrepresentation contrary to s 52 of theCompetition Act RSC 1985, c C-34.Negligence claimsIn considering the requirement on a class certificationmotion to plead a sustainable cause of action, JusticePerell ruled that there can be no recovery for pureeconomic losses in a product liability action in negligenceagainst the manufacturer of a non-dangerousproduct. Justice Perell grounded his decision in ananalysis of past jurisprudence as well as an analysis fromfirst principles, both of which led him to the sameconclusion.Jurisprudential analysisThe jurisprudential analysis begins with a review ofthe four policy considerations behind the law on recoveryfor pure economic loss discussed by Justices Iacobucciand Major in the Supreme Court of Canada (SCC)decision Martel Building Ltd v Canada: 2economic interests are less compelling of protection thanbodily security or proprietary interests; unlimited ability torecover for pure economic loss could lead to indeterminateliability; economic losses often arise in a commercialcontext, in which parties are best suited to guard againstthem through contracts; and recovery for economic losscould encourage inappropriate lawsuits.Justice Perell then noted the five exceptions to thisrule cited by the SCC in Canadian National Railway Cov Norsk Pacific Steamship Co: 3 negligent misrepresentation;negligence of public authorities; negligent performanceof a service; supply of shoddy goods orstructures; and relational economic losses.The SCC elaborated on the exception for the supplyof shoddy goods or structures in Winnipeg CondominiumCorporation No 36 v Bird Construction Co, 4which remains the leading Canadian appellate precedenton the matter. There, Justice La Forest held that theexception required the defect to be “dangerous” and notmerely “shoddy,” since the rationale behind the exceptionwas that courts should not require a person to bephysically injured in order to sue, when the danger isreadily apparent in advance. On the whole, Justice Perellinterpreted the Winnipeg Condominium decision to standfor the proposition that the exception is narrowly limitedto pure economic losses caused by “substantially dangerousproducts” (generally, the costs to repair a productto prevent danger from materialising), noting that “[d]angerousnesswas the cornerstone to the duty of careanalysis and a critical precondition to liability.”australian product liability reporter October 2012 299

Justice Perell reviewed a number of decisions discussingrecoverability of pure economic loss and onlyallowing recovery for “dangerous” products, as well as anumber of earlier class certification decisions, includingsome that held claims for pure economic loss couldproceed to trial and certified the class actions proposed:Griffın v Dell Canada Inc; 5 Gariepy v Shell Oil Co; 6Bondy v Toshiba Canada Ltd; 7 and Barwin v IKOIndustries. 8 Justice Perell distinguished most of theselatter decisions but generally held that, insofar as any ofthem stands for the proposition that a plaintiff canrecover in tort for pure economic loss, he believes theyare wrongly decided.First principles analysisJustice Perell also offered a theoretical explanationfor why the law should not recognise tort claims for pureeconomic loss. He found that, although manufacturersowe consumers a prima facie duty of care, that duty isnegated by public policy considerations when the lossesclaimed are pure economic losses. He found that thereasons given for why economic loss should not beactionable reflect a policy decision that compensationfor economic losses is best regulated by contract andproperty law absent, some countervailing policy (eg,protecting injury from a dangerous product) to justifytort law regulating economic activity. He thereforeconcluded that the “century old policies … againstnegligence law providing compensation for pure economiclosses apply in the case at bar to negate a duty ofcare…”Contractual and statutory claimsThe plaintiffs also claimed that Whirlpool breachedan express or implied warranty to supply goods freefrom material defects and fit for their intended purpose.While the washing machines did include a warranty,Justice Perell found that the warranty only covereddefects in materials or workmanship, and that there wasno express or implied term of the warranty coveringdesign defects. Thus there was no tenable cause ofaction for breach of warranty.Justice Perell also ruled that there was no tenablecause of action with respect to the Competition Actclaims. The plaintiffs argued that Whirlpool had madefalse and misleading representations by omission, thatis, that Whirlpool failed to disclose a defect to customers.Justice Perell agreed that in some circumstances anomission can constitute a false and misleading representationwithin the meaning of the Competition Act.However, absent a duty of care, statutory duty todisclose or a fiduciary duty to speak, silence willgenerally not be considered a representation. In thiscase, given that the alleged design defect was notdangerous, Justice Perell held that.Whirlpool “was not under a duty to disparage its ownproduct and disclose the alleged design defect.”ConclusionThis decision is of significant importance to theproducts liability bar and to manufacturers doing businessin Canada. It confirms that product liability negligenceclaims for non-dangerous products are not actionable,a ruling that should help manufacturers resist classactions in similar cases and rely more strongly on theircontracts.Daniel SternAssociateBlake, Cassels & Graydon LLPdaniel.stern@blakes.comFootnotes1. Arora et al v Whirlpool Canada LP and Whirlpool Corporation[2012] ONSC 2642.2. Martel Building Ltd v Canada [2000] 2 SCR 860; 2000 SCC60.3. Canadian National Railway Co v Norsk Pacific Steamship Co(1992) 91 DLR (4th) 289; [1992] 1 SCR 1021.4. Winnipeg Condominium Corporation No 36 v Bird ConstructionCo (1995) 121 DLR (4th) 193; [1995] 1 SCR 85; [1995]3 WWR 8.5. Griffın v Dell Canada Inc [2009] OJ No 418.6. Gariepy v Shell Oil Co [2002] OJ No 2766.7. Bondy v Toshiba Canada Ltd [2007] OJ No 784.8. Barwin v IKO Industries [2012] OJ No 3332.300australian product liability reporter October 2012

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Consumer law and policy developments inNew Zealand — an excerpt from the upcoming“Consumer Law and Policy in Australia andNew Zealand” (Federation Press, 2013)Kate Tokeley VICTORIA UNIVERSITY OF WELLINGTON, NEW ZEALANDIntroductionFrom the late 1960s onwards the New ZealandParliament began to intervene in the marketplace inorder to give more protection to consumers. The mostsignificant pieces of New Zealand consumer protectionlegislation are the Fair Trading Act 1986, the ConsumerGuarantees Act 1993 and the Credit Contracts andConsumer Finance Act 2003. 1 The Fair Trading Act 1986prohibits misleading conduct in trade, controls somespecific unfair practices and provides for pre-sale productsafety standards. The Consumer Guarantees Act 1993,which is modeled on legislation from the Canadianprovince of Saskatchewan, provides a set of minimumstandards as to the quality of goods and services sold toNew Zealand consumers. 2 The Credit Contracts andConsumer Finance Act 2003 provides for disclosurerequirements for consumer credit contracts and prohibitsunreasonable fees and oppressive credit contracts.Other consumer statues dealing with specific types ofconsumer sales include the Door to Door Sales Act 1967,the Layby Sales Act 1971 and the Unsolicited Goodsand Services Act 1975. There are also various industryspecificOmbudsman schemes and Codes of Practice. 3 Inaddition, mechanisms such as the Disputes Tribunalshave been introduced to improve consumer access tojustice by offering a less expensive, faster and moreinformal alternative to court proceedings for smallclaims. 4 A wide variety of other measures can also beviewed as types of consumer protection regulation. Forexample, the laws that regulate products such as tobacco,alcohol and medicine are designed to reduce consumerharm. 5New Zealand society is a region noted for its strongWelfare State provisions such as a public health systemand an extensive benefit regime. The ideals of thewelfare state are compatible with an acceptance that thegovernment has a role to play in protecting consumers.It is therefore not surprising that New Zealand has arelatively strong set of consumer protection laws. Whilethe welfare-state model has always been an importantpart of New Zealand public policy, it has not remainedunchallenged. The most notable move away from “welfarestate” policies occurred between the years of 1984to 1990 when the Labour-led government instituted aseries of free market-oriented reforms in response toNew Zealand’s mounting external debt. The present theNational-led government, which has been in power since2009, tends toward a similar reluctance to interfere inthe market. One of its stated goals is to move toward lessregulation. 6Since the early 2000s there have been several developmentsin New Zealand consumer policy and law,influenced by a number of somewhat conflicting factorssuch as:• technological changes in the market-place such asinternet trading and online auctions;• the publication of the Organisation for EconomicCo-operation and Development (OECD) toolkitfor consumer law; 7• recent findings in behavioural sciences that suggestthat consumers suffer from cognitive weaknessesthat mean they do not always make rational,welfare-maximising choices; 8• the global financial crises since 2008;• recent reforms in Australia culminating in theAustralian Consumer Law; 9• the current New Zealand’s Government’s principleof “better regulation, less regulation”. 10The following is a summary of the most significantdevelopments in New Zealand consumer law and policysince the early 2000s.Consumer creditThe regulation of consumer credit in New Zealand iscurrently under review. At present the Credit Contractsand Consumer Finance Act 2003 (CCCFA) regulates“consumer” credit contracts. 11 It repealed the Credit302australian product liability reporter October 2012

Contracts Act 1981 and the Hire Purchase Act 1971. TheCCCFA expands the definition of “credit” contracts tocatch agreements that are “in substance” credit arrangements.12 It focuses on protecting the interests of consumersrather than businesses. 13The prevailing approach to consumer protection underthe 2003 Act is to require adequate levels of informationdisclosure in order to allow consumers to make the bestdecision for themselves. 14 The Act aims to protectconsumers by providing meaningful disclosure of keyinformation before the consumer becomes irrevocablycommitted to the contract. In addition there are somelimits imposed on the conduct of lenders. For example,there is a prohibition on unreasonable fees and oppressivecredit contracts and there is some protection forconsumers in cases of unforeseen hardship. 15 There is,however, no requirement that lenders behave responsiblywhen loaning money to consumers.Research published in late 2008 showed that manyNew Zealand consumers make seemingly poor choicesabout how much to borrow and on what terms. 16 In 2011a New Zealand Financial Summit brought togetherpeople from community groups, budgeting services,NGOs, banks, financial regulators, and credit providersto consider appropriate responses to irresponsible lending.The participants concluded that the CCCFA 2003 isnot providing sufficient consumer protection from unscrupulouslenders. They supported the idea of followingAustralia’s lead by introducing legislation to requireresponsible lending. 17In 2012 a Draft Exposure Credit Contracts andConsumer Finance Amendment Bill was released. ThisBill, if enacted, will introduce the principle of responsiblelending. Lenders of credit to consumers will beexpected to exercise reasonable care and skill in theproviding of credit. Not only must they provide consumerswith adequate information expressed in a clearconcise and intelligible manner, they must also ensurethat the terms of the credit contract are not undulyonerous. 18 The lender will be required to make reasonableinquiries as to the consumer’s financial position andtheir credit requirements and be satisfied that the creditcontract is appropriate and affordable for the consumer.19 Unlike the approach taken by a further proposedcredit reform in Australia, the New Zealand Billdoes not include a cap on interest rates. 20 New Zealandpolicy-makers are counting on the initiatives in the Billto adequately encourage lenders to behave more responsiblyand thus drive interest rates down without the needfor specific bright-line caps. 21 Once submissions on theExposure Bill have been assessed, the Bill will befinalised and introduced into the New Zealand Parliament.Consumer Law Reform Bill 2011Consumer Credit is not the only area of New Zealandconsumer law undergoing review. New Zealand hasrecently conducted a general and wide-ranging reviewof many other consumer statutes. 22 The review hasculminated in the Consumer Law Reform Bill 2011,aimed at revising and updating New Zealand consumerlaws. It passed its first reading on 9 February 2012.This review of New Zealand consumer laws has beeninformed by the Australian Productivity Commissionreview of Australia’s consumer policy framework andthe development of the Australian Consumer Law. 23 Oneof the stated policy objectives of the Bill is to achievealignment with the Australian Consumer Law, as appropriate,in accordance with the Government’s agenda of asingle economic market with Australia. 24 Nevertheless,the Bill does not follow the most fundamental reformadopted by Australia, the introduction of a prohibitionon unfair terms. This reform was recommended by theNew Zealand Ministry of Consumer Affairs (the Ministry)in its 2010 Discussion papers on the Consumer LawReform, but is absent from the Bill. 25The Explanatory Note to the Bill states that thecurrent consumer laws are generally sound, albeit havingsome gaps and out-of-date laws. The Bill consequentlydeals largely with reorganising and modernisingexisting consumer laws rather than introducing a raft ofsubstantively new consumer laws. In fact, the review isbased on the debatable premise that moving toward lessregulation is an important policy goal for New Zealand. 26The main changes made by the Consumer Law Billare:• The incorporation of four narrowly-focused statutesinto the Fair Trading Act 1986. The fourstatutes that will be repealed and incorporated intothe amended Fair Trading Act are the AuctioneersAct 1928, the Door to Door Sales Act 1967, theLayby Sales Act 1971 and the Unsolicited Goodsand Services Act 1975.• An extension of the Consumer Guarantees Act 1993to cover new goods sold by traders in traditionaland online auctions. 27 This change means consumersmust purchase auctioned goods with statutoryguarantees rather than take their chances andobtain the product at a possibly cheaper price withno guarantees as to quality. The update makessense because it is difficult to rationalise providinga lower level of consumer protection simply becausethe sale occurs in an online auction or traditionalauction rather than in a shop.• The inclusion of new “purposes” clauses for theFair Trading Act 1986, Consumer GuaranteesAct 1993 and the Weights and Measures Act 1987.australian product liability reporter October 2012 303

For example, cl 5 of the Bill provides that thepurpose of the Fair Trading Act 1986 is to contributeto a trading environment in which tradingis fair, there is effective competition and consumersand businesses can participate confidently.• A requirement that auctioneers be registered. 28• An extension to the Minister’s ability to prohibitunsafe goods. 29 This amendment would allow theMinister to declare unsafe any goods where he orshe considers that a reasonably foreseeable use ormisuse of the goods will, or may, cause injury toany person. 30 The Minister may then prohibit thesupply of these goods. The new provision is anextension of the current rule which allows only aconsideration of the “ordinary use” of the goodsrather than a “reasonably foreseeable use or misuse”of the goods. The provision covers goods thatare considered to have the potential to injure “anyperson”, not just people “other than the consumer”.It therefore covers situations where thereis a potential for the good to injure the consumerwho has acquired the good. The provision has thepotential to restrict a consumer’s freedom tochoose to buy a potentially unsafe product and useit in a safe manner or alternatively to assume therisks of using the product in an unsafe manner. 31• An extension of the Disputes Tribunal jurisdictionto cover complaints about misleading conduct. 32• A requirement for a five day cooling-off period forconsumers who purchase extended warranties. 33Selling extended warranties is now common-placein New Zealand. The value of some of thesewarranties is questionable given that the consumeralready has statutory guarantees under the ConsumerGuarantees Act 1993.• The inclusion in the Consumer Guarantees Act 1993of a provision that details how to apply theacceptable quality guarantee to the supply ofelectricity and gas. 34• A new product safety requirement that suppliersmust notify all voluntary product safety recalls tothe Ministry. 35 Commentators have argued thatthis is an unnecessary burden on suppliers thatcould have the unintended consequence of suppliersbecoming unwilling to acknowledge faults in aproduct and order a recall. 36• An extension of the door-to-door sales consumerprotection to telemarketing and other uninviteddirect selling techniques. 37• The introduction of a prohibition on traders makingunsubstantiated representations. 38 This provisionmight seem somewhat redundant given thatany unsubstantiated representation is almost certainlylikely to breach the more general requirementunder s 9 of the Fair Trading Act that tradersnot engage in misleading conduct or the s 13requirement that they not make false representations.Nevertheless, the provision places a heavierburden on suppliers than ss 9 and 13 because itshifts the burden of proof on to the supplier. Inorder to defend an allegation that a claim isunsubstantiated the supplier would have to provethat it had reasonable grounds to justify or substantiatethe claim at the time the claim was made.This general prohibition on unsubstantiated claimsis different from the approach taken in Australiawhich simply allows the regulator to require asubstantiation notice when a supplier makes aclaim or representation promoting or intending topromote their product. 39 The substantiation noticeis required to provide information capable ofsubstantiating the claim or representation.Some of the consumer law reforms not adopted bythe Consumer Law Reform Bill include:• A prohibition on unfair terms. As has been mentionedabove, the most striking omission from theBill is the lack of provisions about unfair contractterms. Regulators in both the United Kingdom andAustralia have accepted that in the case of noncoreterms in standard form consumer contractsthere is an imbalance of power that favours thesupplier and have legislated accordingly. 40 Instandard form contracts the details of the parties’rights and duties can be lengthy and complex.Most consumers do not examine these terms andhave little ability to influence them. 41 The MinistryDiscussion Paper on this topic, published priorto the drafting of the Bill, concluded that there isa strong case for regulating unfair contract termsprovisions in New Zealand. 42 Unfortunately, thegovernment subsequently chose not to proceedwith the unfair terms prohibition at this time.Instead it is planning to monitor the Australianexperience over the next few years. 43• Statutory provisions on unconscionable conduct.Unconscionability remains an area of law coveredby general contract law. The Ministry initiallysupported the idea of including it in the ConsumerLaw Reform Bill. 44 However, the Governmentrejected this in the face of too much protest frombusiness community. There was also concern thata statutory provision was unnecessary given thatNew Zealand already has a well-developed doctrineof unconscionability in the case law. 45304australian product liability reporter October 2012

• A prohibition on unsolicited direct selling at definedtimes of day. The Australian Consumer Law includesa prohibition of unsolicited salespersons phoningor visiting consumers at home before 9am andafter 6pm and on Sundays and public holidays.The rationale for this restriction is the likelihoodthat the majority of consumers would considerunsolicited phone calls or visits, particularly in theevenings as a nuisance and an invasion of theirprivacy. Unfortunately such a prohibition is notincluded in the New Zealand Bill. The Ministry ofConsumer Affairs considered that there was notsufficiently strong evidence that there are issuesrelating to calling hours in New Zealand, and thatindustry self-regulation appears to have minimisedproblems of this nature. 46• The consolidation of all consumer laws into onestatute. One of the original objectives of thereview of consumer law was to achieve a “simplificationand consolidation of existing laws”. 47Nevertheless, the Consumer Law Reform Bill 2011does not create one Omnibus consumer statuteakin to the Australian Consumer Law. Instead thetwo main consumer statutes, the Fair TradingAct 1986 and the Consumer Guarantees Act 1993continue to operate separately. However, as explainedabove, four narrowly defined statutes have beendrawn together under the umbrella of the FairTrading Act 1986.• Provision for public enforcement of the ConsumerGuarantees Act 1993. The Bill does not providefor a public enforcement agency for the ConsumerGuarantees Act 1993. Unlike the comparable guaranteesunder the Australian Consumer Law, 48 theNew Zealand guarantees remain enforceable onlyby the consumer. This means that consumer redressdepends entirely on consumer knowledge andaction.Consumer protection in the financial marketsSince 2008 there have been major reforms aimed atimproving consumer protection in financial markets.These reforms have been in response to the GFC and thecollapse of New Zealand finance companies which hada traumatic effect on many New Zealanders. 49 Thereforms have been progressed on a staged basis.• Financial Markets Advice: The Financial AdvisorsAct 2008 aims to increase consumer protection inrespect of the provision of financial advice. Thepurpose of this Act is to promote the sound andefficient delivery of financial adviser and brokingservices, and to encourage public confidence in theprofessionalism and integrity of financial advisersand brokers. 50 The most significant reform is therequirement that when a “financial advisor” recommendsor provides guidance in relation to thebuying or selling of a financial product he or shemust take reasonable care and must take intoaccount the requirements of the consumer. 51 Inaddition, the regulations made under the Actrequire advisors to disclose certain information toconsumers such as whether the advisor receivesany payments from people or organisations thatmight influence the financial advice provided. 52• Finance Service Providers Registration and DisputeResolution: The Financial Service Providers(Registration and Dispute Resolution) Act 2008requires financial service providers who provideservice to retail consumers to be registered and tobe members of an approved dispute resolutionscheme.• Financial Markets Authority: The Authority wasestablished in 2011 under the Financial MarketsAuthority Act 2011. Its aim is to promote investmentmarkets that are fair, efficient and transparent.53 The introduction of a single “super regulator”was prompted by the need to restore investorconfidence after the global financial crisis. 54 TheAuthority assumes the functions of the SecuritiesCommission, Government Actuary and overtakessome regulatory functions of the Ministry ofEconomic Development. The Authority’s functionsinclude promoting the confident and informedparticipation of consumers in the financial marketsby disseminating information, education and warningsabout matters relating to financial markets. 55The Authority also monitors compliance withfinancial markets legislation. 56• The Financial Markets Conduct Bill: This Billcompletes the package of reforms of the NewZealand financial markets. It consolidates NewZealand securities law into one easily accessiblestatute with a goal of facilitating the developmentof fair, efficient, transparent financial markets andpromoting the confident and informed participationof businesses, investors, and consumers in thefinancial markets. 57 The Bill sets out rules aboutthe way financial products are offered, promoted,issued and sold. The Commerce Select Committeereported on the Bill in September 2012. 58 It madesome adjustments to the Bill and recommendedthat the Bill be enacted. The main changes introducedby the Bill that are relevant to consumerprotection include:— The addition of a new general offence for falseor misleading statements in relation to financialservices and products. It is intended that theaustralian product liability reporter October 2012 305

FMA will deal with these offences rather theconduct being dealt with by the CommerceCommission under the Fair Trading Act 1986;— simplification of the disclosure regime so thatinvestors receive key information in a clearmanner;— Changes to the governance of financial productsand services including the addition ofduties for managers of investment schemes toact in the best interests of scheme participants;— An increased emphasis on civil liability forbreaches of the regime. Establishment of criminalliability for directors where there is adisclosure defect and the director is eitherreckless or the director has knowledge of thedefect;— Providing FMA with powers to monitor compliancewith the Act;— A prohibition of offers of financial products inthe course of unsolicited meetings.Otherconsumerprotectionlawunderreview• Leaky Buildings: From the mid-1990’s New Zealandhas suffered what has been termed a “leakybuilding crisis” which has been blamed at least inpart on the light-handed regulatory approach introducedby the BuildingAct 1991. 59 The Mediterraneanstylehomes built in the mid to late 1990s useduntreated timber and poor construction techniqueswhich subsequently caused buildings to leak. Thetotal economic cost of the crises has been estimatedat 11.3 billion dollars (in 2008 dollars). 60The Building Act 2004 replaced the 1991 Act. Itstrengthens the regulation of the building industryby extending the range of work for which abuildingconsent,movingbacktowardmoreprescriptivebasedregulation and providing implied warrantiesfor the quality of construction. 61 In addition, theWeathertight Homes Resolution Services Act 2006was enacted in order to provide a fast, flexible andinexpensive resolution service for claims involvingleaky buildings.-based regulation. 62 Homeownersare able to take their claim to a WeathertightHomes Tribunal instead of having to engage inlengthy and expensive court proceedings.• Anti-gambling Laws: In 2000 a review of NewZealand gambling laws was conducted in responseto a perception that consumers in New Zealandwere suffering from an increase in problemgambling.63 This review culminated in the GamblingAct 2003, which harmonised and strengthenedthe previous regulatory scheme. The objectives ofthe Act include controlling the growth of gambling,minimising the harm caused by problemgambling, and facilitating responsible gambling. 64Gambling is illegal unless it is authorised by theAct. One interesting consumer protection measureintroduced by the Act is to require gambling venuemanagers to exclude all self-identified problemgamblersfrom their venue. 65 More recently theGambling (Gambling Harm Reduction) Bill 2010seeks to introduce additional measures to minimiseharm caused by gambling. It aims to overcomeproblems caused by excessive numbers of pokiesbeing located in low income areas with highnumbers of Maori and Pasifika people by enablinglocal authorities, in consultation with their communities,to reduce or eliminate pokies from thosesuburbs and towns where they are particularlyconcentrated or doing particular harm. 66 The Billis currently going through the select committeeprocess.• Retirement Savings Regulation: the KiwiSaverscheme was introduced in 2007 in response toconcerns that New Zealander consumers spend toomuch and fail to adequately save for their retirement.The KiwiSaver scheme is an opt-out retirementsavings scheme which includes some governmentsubsidies. Joining the scheme is voluntary butworkers are automatically enrolled when they starta new job and then have six weeks to opt-out. 67Otherconsumerprotectionlawunderreview• Natural supplements: The regulation of the sale ofnatural health products in New Zealand is currentlyunder review. 68 Under the existing law thereis very little regulation of the natural healthproduct industry. Product labels must not be misleadingand no therapeutic claims can be made ifthe product is to avoid being categorised as amedicine and consequently be subject to the stringentsafety requirements of the MedicinesAct 1981. 69The Therapeutics Products and Medicines Bill 2006proposed a joint trans-Tasman regulatory schemefor the regulation of therapeutic products. The Billwas vigorously opposed by both the Green Partyand the Maori Party and the alternative healthproducts industry. One of the main concerns wasthat the joint scheme would undermine NewZealand’s sovereignty. There was insufficient supportfor the Bill to be enacted. In 2011 the NaturalHealth Products Bill was introduced in to Parliament.70 This Bill proposes a domestic scheme.306australian product liability reporter October 2012

The Bill aims to improve the accuracy of consumerinformation and to introduce safety measuresproportionate to the risks associated withthese products. 71 If enacted, it will tighten theregulation of natural health products in NewZealand.• Tobacco Regulation: The current government iscommitted to making New Zealand smoke-free by2025. 72 A recent government inquiry into thetobacco industry has recommended interventionssuch as banning cigarette vending machines, prohibitingshop displays of tobacco, plain packagingand reducing duty-free allowances. 73• Alcohol Regulation: The Alcohol Reform Bill 2010was drafted in response to the New Zealand LawCommissions 2010 report entitled Alcohol in OurLives: Curbing the Harm. 74 Alcohol causes majorsocial and health-related harm to consumers inNew Zealand. The Bill aims to reduce this harmby measures such as tighter liquor licensing rulesand changing the legal purchasing age. However,many of the recommendations in the Law Commissionreport, such as price control and strictercontrol of alcohol advertising, are not adopted bythe Bill.Kate TokeleySenior LecturerVictoria University of Wellington, New ZealandA version of this article is forthcoming in J Malbon andL Nottage (eds) Consumer Law and Policy in Australiaand New Zealand Federation Press, 2013.Footnotes1. See, for example, G Austin “The Regulation of ConsumerCredit Products: An Examination of Baseline Assumptions”in S Frankel (ed) Learning from the Past Adapting for theFuture: Regulatory Reform in New Zealand Lexis Nexis,Wellington, 2011 p 295.2. The Saskatchewan statute on which the New Zealand legislationis modeled is called the Consumer Product Warranty andLiability Act 1978. It has subsequently been replaced by theConsumer Protection Act 1996 (Saskatchewan).3. For example, the Electricity and Gas Complaints Commission,The Office of the Banking Ombudsman, The Insurance andSavings Ombudsman and the New Zealand Medical AssociationCode of Ethics available at: www.nzma.org.nz/sites/all/files/CodeOfEthics.pdf.4. Disputes Tribunal Act 1988 (NZ).5. See the Smoke-free Environments Act 1990 (NZ), the Sale ofLiquor Act 1989 (NZ) and the Medicines Act 1981 (NZ).6. The government released a statement on regulation entitled:Better Regulation, Less Regulation in 2009. The statementindicates that the government has a preference for minimallegal intervention in the market place. See Hon Bill Englishand Hon Rodney Hide “Government Statement on Regulation:Better Regulation, Less Regulation” 17 August 2009 availableat: www.treasury.govt.nz.7. The Organisation for Economic Co-operation and Development(OECD) The Consumer Policy Toolkit 2010 was devisedby the OECD with significant input from New Zealandofficials. It is regularly used by the Ministry of ConsumerAffairs in the development of policy. See, for example,Ministry of Consumer Affairs Consumer Law Reform AdditionalPaper — February 2011 Consumer Information Standards(2011).8. These findings provide a rationale for some of the morepaternalistic consumer law reform in areas such as gambling,smoking, alcohol consumption, over-indebtedness and retirementsavings. See generally T Irwin Implications of BehaviouralEconomics for Regulatory Reform in New Zealand (SapereResearch Group, 2010); New Zealand Ministry of EconomicDevelopment, Behavioural Analysis for Policy: New lessonsfrom economics, philosophy, psychology, cognitive science andsociology (2006). There is a substantial body of literature onthe implications of behavioural economics to law. See, forexample, C Sunstein “Empirically Informed Regulation” (2011)U. Chi. L. R. 1349 at 1350–361; R B Korobkin & T S Ulen“Law and Behavioural Science: Removing the RationalityAssumption from Law and Economics” (2000) 88 Cal. L. Rev1051: C Joll et al, “Law and Behavioural Approach to Law andEconomics” (1998) 50 Stan. L. Rev 1471.9. Competition and Consumer Act 2010, Sch 2; Malbon andNottage, Ch 1 of this volume.10. Above, n 6.11. “Consumer credit contracts” are defined as those that are“primarily for personal, domestic or household purposes”(CCCFA s 11).12. Credit Contracts and Consumer Finance Act 2003 (NZ) s 7(2).13. Apart from the provisions in respect of oppressive creditcontracts, the CCFA leaves the regulation of credit provided forbusiness purposes largely to the common law.14. Credit Contracts and Consumer Finance Act 2003 (NZ) Sch 1.15. Credit Contracts and Consumer Finance Act 2003 (NZ) ss 41–44(unreasonable fees), ss 55–59 (unforeseen hardship), ss 117–131(oppressive credit contracts).16. J Legge and A Heynes Beyond Reasonable Debt Part 1: ABackground Report on the Indebtedness of New ZealandFamilies (Research Report 8/08, Families Commission andRetirement Commission, Wellington, December 2008), availableat www.familiescommission.govt.nz. Ministry of ConsumerAffairs Review of the Operation of the Credit Contractsand Consumer Finance Act 2003 (September 2009) availableat www.consumeraffairs.govt.nz.17. See Malbon, Ch 9 of this volume.australian product liability reporter October 2012 307

18. Clause 9B(2)(b) and (c).19. Clause 9B(2)(e) and (f).20. The Australian National Consumer Credit Protection Amendment(Enhancements) Bill 2011 proposes that from 1 July 2012an Australian credit provider must not enter into a creditcontract, including continuing credit contracts but excludingsmall amount credit contracts, if the annual cost rate of thecontract exceeds 48 per cent. See Howell, Ch 12 in thisvolume; and D McGill, S Corones, N Howell, “Regulating theCost of Small Loans: Overdue or Overkill?” (2012) 30 C &SLJ 149.21. See C Tremain “Tougher laws for loan sharks” media release2 April 2012 available at www.beehive.govt.nz. Interestingly,there is no evidence that introducing responsible lendingobligations had the effect of lowering interest rates in Australia.22. Ministry of Consumer Affairs Consumer Law Reform: ADiscussion Paper June 2010 para 2 available at www.consumeraffairs.govt.nz.The Review covers the Fair Trading Act 1986,the Consumer Guarantees Act 1993, the Weights and MeasuresAct 1987, the Carriage of Goods Act 1979, the Sale of GoodsAct 1908, the Secondhand Dealers and Pawnbrokers Act 2004,the Auctioneers Act 1928, the Door to Door Sales Act 1967, theLayby Sales Act 1971 and the Unsolicited Goods and ServicesAct 1975.23. Australian Government Productivity Commission Review ofAustralia’s Consumer Policy Framework, Productivity CommissionInquiry (Report no 45, 30 April 2008) available atwww.pc.gov.au; Malbon and Nottage, Ch 1 of this volume.24. See Consumer Law Reform Bill 2011 (NZ), General PolicyStatement in the Explanatory Note, p 1. More generally onTrans-Tasman economic integration and regulatory cooperation,see L Nottage “Asia-Pacific Regional Architecture andConsumer Product Safety Regulation for a Post-FTA Era”Sydney Law School Research Paper No 09/125 4 October2011. Available at SSRN: http://ssrn.com/abstract=1509810(forthcoming in Ashgate book co-edited by Meredith andSuzy).25. See Consumer Law Reform Discussion Paper above n 23,para 6.2.1 and see also Consumer Law Reform AdditionalPaper — September 2012 — Unfair Contract terms (2012)available at http://www.consumeraffairs.govt.nz/legislationpolicy/policy-development/consumer-law-reform.26. Consumer Law Reform Discussion Paper above n 20, para 2.See also government statement on regulation entitled: BetterRegulation, Less Regulation 17 August 2009 available atwww.treasury.govt.nz.27. Consumer Law Reform Bill 2011 (NZ), cl 39 and cl 40.28. Clause 66 requires auctioneers to be registered and 67 disqualifiescertain people from registration. Compare also Patersonand Tokeley, Ch 4 of this volume.29. Consumer Law Reform Bill 2011 (NZ) (287–1), cl 14.30. Consumer Law Reform Bill 2011 (NZ) (287–1), cl 14(1A).31. A similar provision was discussed and enacted in the context ofthe Australian Consumer Law reforms: see Kellam and Nottage,Ch 8 of this volume.32. Consumer Law Reform Bill 2011 (NZ) (287–1), cl 21.33. See s 36U inserted by cl 18 of the Consumer Law ReformBill 2011 (NZ). The United Kingdom also provide for acooling-off period for extended warranties: see the Supply ofExtended Warranties on Domestic Goods Order 2005 (UK),under the Fair Trading Act 1973 (UK).34. Consumer Law Reform Bill 2011 (NZ), cll 35 and 36.35. Section 31 inserted by cl 15 of the Consumer Law Reform Bill2011 (NZ).36. P Stubbs and J Varcoe “Product Safety in New Zealand: MajorChanges on the Way” (2012) (22) (6) Australian ProductLiability Reporter 240.37. Section 36K inserted by cl 18 of the Consumer Law ReformBill 2011 (NZ).38. Clause 9. An unsubstantiated representation is defined as arepresentation made by a person who does not have reasonablegrounds for making that representation whether or not thatrepresentation in fact false or misleading. However, if there areno reasonable grounds for making a representation it seemslikely that the representation would indeed be misleading.39. Competition and Consumer Act 2010, Sch 2, Australian ConsumerLaw s 219. See Lanyon, Ch 14 of this volume.40. The Unfair Terms in Consumer Contracts Regulations 1999(UK); Competition and Consumer Act 2010, Sch 2, AustralianConsumer Law ss 23 and 24.41. The inability of the consumer to influence the terms ofstandard-form contracts prompted Friedrich Kessler to describethese contracts as “contracts of adhesion”. See F Kessler“Contracts of Adhesion — Some Thoughts about Freedom ofContract” (1943) 43 Colum L Rev 629. Failing to read allstandard form terms should not necessarily be viewed asirrational behaviour. Some economic theorists actually describeconsumers’ behaviour in this regard as “rational ignorance”.See R E Barnett “Consenting to Form Contracts” (2002–2003)71 Fordham L Rev 627, 631; T D Rakoff “Contracts ofAdhesion: An Essay in Reconstruction” (1983) 96 Harv L Rev1173.42. See Consumer Law Reform Additional Paper — September2010 Unfair Contract Terms available at www.consumeraffairs.govt.nz.For a full examination of standard-form consumercontracts and the problem of unfair terms see K Tokeley“Introducing a Prohibition on Unfair Contractual Terms intoNew Zealand Law: Justifications and Suggestions for Reform.”(2009) NZULR 418–448.43. See Office of the Minister of Consumer Affairs Consumer LawReform available at www.consumeraffairs.govt.nz. Australia infact already has significant experience concerning the impactof unfair contract terms regulation, as Victoria enacted asimilar scheme in 2002. See further Webb, Ch 5 of this volume.44. “Consumer Law Reform Additional Paper — October 2010Unconscionability” available at www.consumeraffairs.govt.nz.308australian product liability reporter October 2012

45. Cabinet Economic Growth and Infrastructure Committee ConsumerLaw Reform (December 2010) at pp 10 and 11 availableat www.consumeraffairs.govt.nz. In Australia, by contrast,general principles of unconscionability develop in parallel withlegislative provisions, which moreover can be invoked byregulators (not just parties to contracts): see Webb, Ch 5 in thisvolume.46. See 2010 Regulation of Uninvited Direct Selling available atwww.consumeraffairs.govt.nz.47. See Ministry of Consumer Affairs Consumer Law Reform: ADiscussion Paper (June 2010) para 2 available at www.consumeraffairs.govt.nz.48. See Paterson and Tokeley, Ch 4 of this volume; Lanyon, Ch 14.49. See Ministry of Economic Development Financial MarketsConduct Bill — Initial Briefing to Comerce Select Committee(May 2012) and The Financial Markets Conduct Bill —Capital Markets Matter (Summary report of CMD taskforce(December 2009) both available at http://www.parliament.nz/en-NZ/PB/SC/Documents/Advice/?Custom=00DBHOH_BILL11150_1.50. Financial Services Act 2008 (NZ), s 3.51. See the Financial Advisors Act 2008 (NZ) s 33. ComparePearson, Ch 10 of this volume.52. Financial Advisors (Disclosure) Regulations 2010 (NZ) sch 1.53. Section 8.54. S Power “New financial markets watchdog opens for business”2011 available at www.beehive.govt.nz. See also G Walker“Goodbye to All That: A New Financial Markets Authority forNew Zealand” (2011) 29 C&SLJ 239. See also Capital MarketDevelopment Taskforce Report of the Capital Market DevelopmentTaskforce (December 2009) available at www.med.govt.nz.The taskforce looked at the state of New Zealand’s capitalmarkets, the international context, future risks and opportunitiesand key changes necessary to deliver the best possiblefinancial system for New Zealand.55. Section 9.56. Section 9.57. The purposes are stated in cl 3. The Bill will replace a numberof pieces of legislation, including the Securities Act 1978, theSecurities Markets Act 1988, the Unit Trusts Act 1960, theSuperannuation Schemes Act 1989, and aspects of the KiwiSaverAct 2006.58. Report on Financial Markets Conduct Bill from the CommerceSelect Committee available at http://www.parliament.nz/NR/rdonlyres/F7A3F298-6221-4718-A77D-E9E068DBBC36/242101/DBSCH_SCR_5616_FinancialMarketsConductBill3422_921.pdf.59. The Building Act 1991 (NZ) established a light-handed form ofregulation which allowed a performance-based approach ratherthan relying solely on a prescriptive standards approach. Thiswas intended to increase innovative building techniques. See PMumford Enhancing Performance-Based Regulation: Lessonsfrom New Zealand’s Building Control System (PhD Thesis)Victoria University of Wellington 2010. For various criticalassessments of the leaky building issue, see S Alexander et alThe Leaky Building Crisis: Understanding the Issues ThomsonReuters, 2011.60. Pricewaterhouse Coopers Weathertightness: Estimating thecost Wellington, 2009, see Department of Building and Housingavailable at www.dbh.govt.nz. By way of comparison theNew Zealand Treasury estimates the damage caused by the twoChristchurch earthquakes in September 2010 and February2011 at around $20 billion, see Hon Bill English, Ministerof Finance Pre-election Economic and Fiscal Update 2011available at www.treasury.govt.nz.61. Sections 396 and 397 provide implied warranties for consumersin respect of materials and building work.62. The Act replaces the Weathertight Homes Resolution ServicesAct 2002. For analysis and discussion on the adjudicationprocess established under the legislation see D David “AWeathertight Adjudication Procedure? Adjudication under theWeathertight Homes Resolution Services Act 2002” 10 AucklandUL Rev. In 2006 the Act was amended to further enhance theeffectiveness and efficiency of the dispute resolution process.63. The Department of Internal Affairs Gaming Reform in NewZealand: towards a new legislative framework 28 February2001 available at www.dia.govt.nz.64. See s 3 of the Gambling Act 2003 (NZ).65. Section 310. Compare PC 2009 Report www.pc.gov.au/projects/inquiry/gambling-2009.66. Clause 8.67. See the KiwiSaver Act 2006 (NZ) ss 9 and 16 and generallywww.kiwi.saver.govt.nz.68. See the Ministry of Health The Development of a NaturalHealth Products Bill Consultation Paper (2010).69. Natural health products are either covered by the DietarySupplements Regulations 1985 (NZ) or the Medicines Act 1981(NZ).70. Natural Health Products Bill 2011 No 324–1 (NZ). See alsoMinistry of Health The Development of a Natural HealthProducts Bill: Consultation paper 2010, Wellington.71. Clause 4 Natural Health Products Bill 2011 No 324–1 (NZ).72. See Government Final Response to Report of the Maori AffairsCommittee on Inquiry into the tobacco industry in Aotearoaand the consequences of tobacco use for Maori, presented tothe House of Representatives in accordance with StandingOrder 248 available at www.parliament.nz.73. Maori Affairs Committee on Inquiry into the tobacco industryin Aotearoa and the consequences of tobacco use for Maori(I.10A) (3 November 2010) available at www.parliament.nz;The Smoke-free Environments (Controls and Enforcement)Amendment Bill 2010 (NZ), if enacted, would remove alltobacco displays in shops. Such advertising is already prohibitedin Australia, which has also introduced plain packaginglegislation — prompting litigation and international arbitrationproceedings initiated by tobacco companies: L Nottage “ConsumerProduct Safety Regulation and Investor-State ArbitrationPolicy and Practice after Philip Morris Asia v Australia”(2011) Australian Product Liability Reporter 22 (1&2) p 154;australian product liability reporter October 2012 309

Sydney Law School Research Paper No 12/26. Available atSSRN: http://ssrn.com/abstract=2041680 [or: OUP 2012 Chapterversion in L Trakman et al (eds)].74. The Alcohol Law Reform Bill 2010 236–2 (NZ). The LawCommission Report Alcohol In Our Lives: Curbing the HarmNZLC R114 27 April 2010 available at www.lawcom.govt.nz.310australian product liability reporter October 2012

INDEX TO VOLUME 22Table of articlesPage numbers in volume 22 correspond to thefollowing issues:Issue 1&2 — pp 153–76Issue 3 — pp 177–92Issue 4 — pp 193–212Issue 5 — pp 213–28Issue 6 — pp 229–44Issue 7 — pp 245–58Issue 8 — pp 259–78Issue 9 — pp 279–94Issue 10 — pp 295–319This table lists alphabetically by author all articlesappearing in volume 22 of the Australian ProductLiability Reporter.Abraham, Richard and Cook, LarissaThe introduction of the Australian Biologicals RegulatoryFramework — 178Bertrand,Perrine;Freeman,Rod;andKenyon,ValerieEuropean Commission’s fourth report on the ProductLiability Directive: still maintaining the balance betweenthe interests of producers and consumers — 204Brown, Ryan CTexas appellate court stabilises “presumption of noliability” jury instruction in products cases — 254Chiaves, Filippo and Rolla, FrancescaItaly: smokers’class action declared non-admissible — 162Cook, Larissa and Abraham, RichardThe introduction of the Australian Biologicals RegulatoryFramework — 178Cooper, MontyPassing the smell test: Twombly, Iqbal, and a CaliforniaFederal Court’s requirement of more specificity in complaintagainst defendants — 288De Campo, Ben and Maxwell, MichaelNanoparticles:Dealingwiththeshiftingsandsofscience — 246Doris, MartinDeveloping consumer ODR in the European Union — amodel to imitate? — 280Fleming, MarcusNew primary production and processing standard foreggs and egg products — 168Forbes, Roger; Hackney, Beth; Stevenson,Peta; and Saville, MoiraHips and PIPs — a future for product liability classactions in Australia? — 230Fraser, Melissa and Zaurrini, RossEarlier rather than later: court orders ACCC to discloseimmunity applicant’s information to other cartel participantsat early stage of cartel proceedings — 200Freeman, Rod and Hunting, MarkExpert witness fails to impress in car tyre case — 207Freeman,Rod;Kenyon,Valerie;andBertrand,PerrineEuropean Commission’s fourth report on the ProductLiability Directive: still maintaining the balance betweenthe interests of producers and consumers — 204Goldberg, Michael and Melnitchouk, OlyaNew toy safety regulations come into play in theUK — 197Goldberg, Michael and Pearl, SimonUS Supreme Court ruling provides clarification onjurisdiction over foreign manufacturers — 164Guadagno, Nadia; O’Donahoo, Peter; andKinsey, DanielHigh Court denies special leave in Vioxx litigation — 264Hackney,Beth;Stevenson,Peta;Saville,Moira;and Forbes, RogerHips and PIPs — a future for product liability classactions in Australia? — 230Hammerschlag, Judith and Skinner, MatthewProduct liability in Singapore — an overview — 249australian product liability reporter October 2012 311

Handorn, BorisGermany: Hamm Court of Appeal decision on importer’sduty to examine distributed goods (“Cabin Scooter”from China) — 256Hiemstra, MachteldEurope — Netherlands: The application of standardterms and conditions effectively limits a seller’s liabilityto a buyer in a product defect case — 221Hughes, AnnetteMandatory reporting under the Australian ConsumerLaw — an overview, reflection and practical guide — 184Hunting, Mark and Freeman, RodExpert witness fails to impress in car tyre case — 207Kapoor, ArunImporters, manufacturers and traders to be impacted byGermany’s new consumer legislation — 217Kenyon, Valerie; Bertrand, Perrine; and Freeman,RodEuropean Commission’s fourth report on the ProductLiability Directive: still maintaining the balance betweenthe interests of producers and consumers — 204Kinsey, Daniel; Guadagno, Nadia; andO’Donahoo, PeterHigh Court denies special leave in Vioxx litigation — 264Kinsey, Daniel and O’Donahoo, PeterThe Vioxx Appeal — a bitter pill for pharmaceuticalclass actions? — 234Klindt, ThomasThe new German Product Safety Act — 166Lach, Sebastian and Raichie, JuliaEurope — Germany: Munich Court of Appeals upholdsmanufacturer’s liability for exploding bottle — 219Lin, AngelaImporting foods into Canada: a regulatory overview — 190Long, PeterThe affect of proportionate liability legislation on productliability claims — 194Macrae, AlisonMedical devices — to approve or not to approve? — 269Macrae, Alison and Pearl, SimonUSSupremeCourtprotectsgenericdrugmanufacturers — 171Maher, Andrew; Stone, Susie; and Sharkey,SarahAustralian contract law reform — 260Maxwell, Michael and De Campo, BenNanoparticles:Dealingwiththeshiftingsandsofscience — 246McAdams, AlisonParent trap — parental company’s duty of care significantlyexpanded — 274Melnitchouk, Olya and Goldberg, MichaelNew toy safety regulations come into play in theUK — 197Nottage, LukeConsumer product safety regulation and investor-statearbitration policy and practice after Philip Morris Asia vAustralia — 154O’Donahoo, Peter and Kinsey, DanielThe Vioxx Appeal — a bitter pill for pharmaceuticalclass actions? — 234O’Donahoo,Peter;Kinsey,Daniel;andGuadagno,NadiaHigh Court denies special leave in Vioxx litigation — 264Pearl, Simon and Goldberg, MichaelUS Supreme Court ruling provides clarification onjurisdiction over foreign manufacturers — 164Pearl, Simon and Macrae, AlisonUSSupremeCourtprotectsgenericdrugmanufacturers — 171Pearson, GailSuitable for an individual or acceptable for all? Aresponse to Nottage and Kozuka — 266Raichie, Julia and Lach, SebastianEurope — Germany: Munich Court of Appeals upholdsmanufacturer’s liability for exploding bottle — 219Rheingold, Paul DMass torts in the United States — 296Private settlement of mass product litigation in theUnited States — 214312australian product liability reporter October 2012

Rolla, Francesca and Chiaves, FilippoItaly: smokers’class action declared non-admissible — 162Rolla, Francesca and Tilve, AdrianaEurope — Italy: The Supreme Court reiterates thatdamage ensuing from the death of a relative can becompensated — 224Saville, Moira; Forbes, Roger; Hackney, Beth;and Stevenson, PetaHips and PIPs — a future for product liability classactions in Australia? — 230Schucht, CarstenNew guidelines from the EU Commission on importcontrols — 272Sewell, Maggie and Taylor, ClaireSafer products for European consumers: European Parliamentadopts controversial resolution on the revisionof the GPSD and market surveillance — 169Sharkey, Sarah; Maher, Andrew; and Stone,SusieAustralian contract law reform — 260Skinner, Matthew and Hammerschlag, JudithProduct liability in Singapore — an overview — 249Smith, Michael CSale of Goods Act defendants have some explaining todo: defect inferred, even in the face of spoliation — 182Stern, DanielCanadian case law: Arora et al v Whirlpool Canada LPand Whirlpool Corporation — 299Stevenson,Peta;Saville,Moira;Forbes,Roger;and Hackney, BethHips and PIPs — a future for product liability classactions in Australia? — 230Stilson, Guy WAmerican asbestos litigation, evidence of exposure toasbestos — 291Stone, Susie; Sharkey, Sarah; and Maher,AndrewAustralian contract law reform — 260Stubbs, Peter and Varcoe, JamesProduct safety in New Zealand: major changes on theway — 240Taylor, Claire and Sewell, MaggieSafer products for European consumers: European Parliamentadopts controversial resolution on the revisionof the GPSD and market surveillance — 169Tilve, Adriana and Rolla, FrancescaEurope — Italy: The Supreme Court reiterates thatdamage ensuing from the death of a relative can becompensated — 224Tokeley, KateConsumer law and policy developments in New Zealand— an excerpt from the upcoming “Consumer Law andPolicy in Australia and New Zealand” (Federation Press,2013) — 301Varcoe, James and Stubbs, PeterProduct safety in New Zealand: major changes on theway — 240Wende, SusanneJurisdiction over a non-resident manufacturer in productliability cases under US and European private internationallaw — 159Zaurrini, Ross and Fraser, MelissaEarlier rather than later: court orders ACCC to discloseimmunity applicant’s information to other cartel participantsat early stage of cartel proceedings — 200australian product liability reporter October 2012 313

Table of casesThis table lists alphabetically all cases appearing involume 22 of the Australian Product Liability Reporter.Page numbers in bold refer to articles focusing on therelevant case.ACCC. See Australian Competition and ConsumerCommissionActos (Pioglitazone) Products Liability Litigation,Re, MDL 2299 (WDLa) — 296Amaca Pty Ltd (under NSW administered windingup) v Booth (2011) 283 ALR 461; 86 ALJR 172; [2011]HCA 53; BC201109716 — 239, 247–48, 265Amaca Pty Ltd v Ellis (2010) 240 CLR 111; 263 ALR576; 84ALJR 226; [2010] HCA5; BC201000970 — 235,247–48, 265Amchem Products Inc v Windsor; sub nom (1997)521 US 591; 138 L Ed 689; 117 S Ct 2231; 65 USLW4635 — 215, 217American Optical Corp v Spiewak, Case Nos SC08-1616 and SC08-1640 (Fla, decided 8 July 2011) — 174Aquagenics Pty Ltd v Break O’Day Council (2010)26 BCL 263; [2010] TASFC 3; BC201002872 — 194Arora vWhirlpool Canada LP 2012 ONSC 2642 — 299Asahi Metal Industry Co Ltd v Superior Court ofCalifornia 480 US 102 (1987) — 164–65, 173Ashcroft v Iqbal, 556 US 662 (2009) — 174, 288–89ASIC. See Australian Securities and InvestmentsCommissionAswan Engineering Establishment Co v LupidineLtd [1987] 1 WLR 1 — 268Australian Competition and Consumer Commissionv Prysmian Cavi E Sistemi Energia SRL [2011] FCA938; BC201106278 — 200–03Australian Securities and Investments Commission vPDawson[2008]FCAFC123;(2008)169FCR227 — 201B1 (Contracting) Pty Ltd v Strikwerda 2005) 3DDCR 149; [2005] NSWCA288; BC200506703 — 226Barker v Corus [2006] 2 AC 572; [2006] 3 All ER 785;[2006] 2 WLR 1027 — 265Barwin v IKO Industries [2012] OJ No 3332 — 300BellAtlanticCorpvTwombly550US544(2007) — 174,288–89Blackmore v Polaris Indus Inc, Case No 10-00631(US Dist Ct, D Colo, filed 21 July 2011) — 175Bondy v Toshiba Canada Ltd [2007] OJ No 784 — 300BS Brown & Son Ltd v Craiks Ltd [1970] 1 All ER823; [1970] 1 WLR 752 — 268Canadian National Railway Co v Norsk Pacific SteamshipCo [1992] 1 SCR 1021 — 299Caparo Industries Plc v Dickman [1990] 2 AC 605;(1990) 1 ACSR 636; [1990] 1 All ER 568; [1990] 2WLR 358 — 253, 274Casey v Perini Corporation, 206 Cal App 4th 1222(2012) — 291–92Chandlerv Cape PLC [2012] EWCACiv 525 — 274–75Chandra v Perpetual Trustees Victoria Ltd (2007)ANZ ConvR 481; 13 BPR 24,675; [2007] NSWSC 694;BC200705487 — 194Chappel v Hart (1998) 195 CLR 232; 156 ALR 517; 72ALJR 1344; BC9804342 — 235Codacons v British American Tobacco Italia SpA,Court of Rome, XIII Division (11April 2011) — 162–63Conley v Gibson, 355 US 41 (1957) — 288Connelly v RTZ Corporation PLC, HL 1997 — 274De Cruz Andrea Heidi v Guangzhou Yuzhitang HealthProducts Co Ltd [2003] SGHC 229; [2003] 4 SLR682 — 252DePuy Orthopaedics, Inc ASR Hip Implant ProductsLiability Litigation, Re, MDL 2197 (NDOh) — 296Divya v Toyo Tire and Rubber Co Ltd [2011] EWHC1993 (QB) — 207–09Evans v Queanbeyan City Council (2011) 9 DDCR541; [2011] NSWCA 230; BC201105860 — 235,239Fairchild v Glenhaven Funeral Services Ltd [2003] 1AC 32; [2002] 3 All ER 305; [2002] 3 WLR 89 — 265Fontenot v TASER Int’l Inc, Case No 3:10-125 (USDist Ct, WDNC, verdict reached 19 July 2011) — 174–75Fosamax (Alendronate Sodium) Products LiabilityLitigation, Re, MDL 2243 (No II) (DNJ) — 296Goodyear Dunlop Tires Operations, SA v Brown,Case No 10-76 (US Supreme Court) — 164–65, 173Graham Barclay Oysters Pty Ltd v Ryan (2000) 109LGERA 1; 177 ALR 18; [2000] FCA 1099;BC200004491 — 268Griffin v Dell Canada Inc; Gariepy v Shell Oil Co[2002] OJ No 2766 — 300Gunnersen v Henwood [2011] VSC 440;BC201106864 — 194–95Hamid v Lexus, 2011 WL 7074213 (Tex App —Houston [1 Dist]) — 254–55Henry Kendall & Sons v William Lillico & Sons Ltd;Hardwick Game Farm v Suffolk Agricultural [1969]2 AC 31; [1968] 2 All ER 444; [1968] 3 WLR 110;[1968] 1 Lloyd’s Rep 547 — 268HSD Co Pty Ltd v Masu Financial Management PtyLtd [2008] NSWSC 1279; BC200810786 — 195J McIntyre Machinery Ltd v Nicastro US SupremeCourt, Case No 09-1343, 27 June 2011 — 159–61,164–65, 173Koh v S C Johnson & Son Inc, Case No 09-00927 (USDist Ct, ND Cal) — 175Lym International Pty Ltd v Marcolongo [2011]NSWCA 303; BC201107351 — 196Martel Building Ltd v Canada [2000] 2 SCR 860 — 299314australian product liability reporter October 2012

McGhee v National Coal Board [1973] SC 37; [1972]3 All ER 1008; [1973] 1 WLR 1 — 265Medtel Pty Ltd v Courtney (2003) 198 ALR 630;(1991)ATPR41-939;[2003]FCAFC151;BC200303598 — 268Medtronic, Inc, Sprint Fidelis Lead Wire, Re, MDLNo 1905 (DMinn) — 216Medtronic, Inc, Sprint Fidelis Leads Products LiabilityLitigation, Re, 623 F3d 1200 — 216Merck Sharp & Dohme (Australia) Pty Ltd v Peterson(2011) 196 FCR 145; 284 ALR 1; [2011] FCAFC 128;BC201107861 — 233, 234–39, 264–65Milward v Acuity Specialty Products Group, Inc, 639F3d 11 (1st Cir 2011) — 297Muskoka Fuels v Hassan Steel Fabricators Ltd, 2009CanLII 63125 (ON SC) — 182–83Muskoka Fuels v Hassan Steel Fabricators Ltd, 2011ONCA 355 (CanLII) — 182–83Nelson v Matrixx Initiatives, Inc, No C 09-02904 (NDCal May 18, 2012) — 288–90Northern Securities Co v United States, 193 US 197(1904) — 154Ortiz v Fibreboard Corp; sub nom (1999) 527 US815; 144 L Ed 2d 715; 119 S Ct 2295; 67 USLW4632 — 216Permanent Custodians Ltd v King [2010] NSWSC509; BC201003359 — 195Peterson v Merck Sharp & Dohme (Australia) PtyLtd (2010) 184 FCR 1; 266 ALR 1; 85 IPR 1; [2010]FCA 180; BC201001051 — 233, 239Peterson v Merck Sharp & Dohme (Australia) PtyLtd [2012] HCATrans 105 (11 May 2012) — 265Petlack v S C Johnson & Son Inc, Case No 08-00820(US Dist Ct, ED Wis) — 175PLIVA, Inc v Mensing, Case No 09-993 (US SupremeCourt) — 171–72PLIVA, Inc v Mensing, 131 SCt 2567 (2011) — 297Propecia (Finasteride) Product Liability Litigation,Re, MDL 2331 (EDNY) — 296Rasell v Cavalier Marketing (Australia) Pty Ltd[1991] 2 Qd R 323; (1990) 96 ALR 375; (1991) ASC56-036; (1991) ATPR 41-152 — 239, 268Reinhold v New South Wales Lotteries Corporation(No 2) [2008] NSWSC 187; BC200801327 — 195Resurfice Corp v Hanke [2007] 1 SCR 333; [2007] 4WWR 1 — 265Riegel v Medtronic, Inc, 552 US 312 (2008) — 216Rogers v Parish (Scarborough) Ltd [1987] 1 QB933 — 268Rowe v Grünenthal GmbH [2011] VSC 657;BC201110002 — 233Saloman v Saloman & Co [1897] AC 22; [1895] AllER Rep 33; (1896) 66 LJ Ch 35; 75 LT 426 — 255Schreiber Brothers Ltd v Currie Products Ltd, 1980CanLII 11 (SCC); [1980] 2 SCR 78 — 183Seltsam v McGuinness (2000) 49 NSWLR 262; 19NSWCCR385;[2000]NSWCA29;BC200000735 — 235St George Bank Ltd v Quinerts Pty Ltd (2009) 25 VR666; [2009] VSCA 245; BC200909697 — 194TV Media Pte Ltd v De Cruz Andrea Heidi [2004] 3SLR(R) — 253Ucak v Avante Developments [2007] NSWSC 367;BC200702721 — 194–95Union Carbide Corp v Brown, Case No 2011-M-00874 (Miss, order filed 13 July 2011) — 174Webb v Nashville Area Habitat for Humanity Inc,Case No M2009-01552-SC-R11-CV (Tenn, decided21 July 2011) — 174Winnipeg Condominium Corporation No 36 v BirdConstruction Co [1995] 1 SCR 85 — 299World Trade Center Disaster Site Litigation, Re,SDNY, opinion of Judge Hellerstein 3/11/11 — 216Wright v Ford Motor Co (2007) 508 F3d 263 (5thCir) — 254Wyeth v Levine 555 US 555 (2009) — 172Yates v Mobile Marine Repairs Pty Ltd [2007]NSWSC 1463; BC200710991 — 195Zoloft (sertaline hydrochloride) Product LiabilityLitigation, Re, MDL 2342 (EDPa) — 296australian product liability reporter October 2012 315

Table of statutesThis table lists alphabetically within each jurisdictionall statutes appearing in volume 22 of the AustralianProduct Liability Reporter.AustraliaCommonwealthAustralian Consumer Law (Sch 2 of the Competitionand Consumer Act 2010) — 184–89, 226, 232, 260–62,268, 300Pt 3-3 Div 2 — 268s 2 — 188–89s 3 — 189, 262s 9 — 268s 23 — 307s 24 — 307s 54(2) — 268s 131(1) — 184–85s 131(2) — 189s 131(3) — 188s 131(4) — 189s 131(5) — 189s 131(6) — 189s 132A — 189s 133 — 189s 202 — 189s 207 — 189s 219 — 307Australian Securities and Investments Commission Act2001 — 194Pt 2 — 263s 12 ED(2) — 268Competition and Consumer Act 2010 — 184, 233Pt VIA — 263s 157B — 200, 202Sch 2 (Australian Consumer Law) — 184, 262,268, 306Competition and Consumer Regulations 2010 — 186reg 90 — 226reg 90(1)(a) — 226reg 90(1)(b)(i) — 226reg 90(1)(b)(ii) — 226reg 90(1)(c) — 226reg 90(1)(d)(i) — 226reg 90(1)(d)(ii) — 226reg 90(1)(d)(iii) — 226reg 90(1)(d)(iv) — 226reg 90(1)(e) — 226reg 90(1)(f) — 226reg 90(1)(g) — 226reg 90(1)(h) — 226reg 92 — 186Corporations Act 2001 — 194Pt 7.10 — 263Federal Court of Australia Act 1976 — 201–02Pt IVA — 230s 33C — 233s 33N — 233National Consumer Credit Protection Act 2009 — 268s 116 — 268s 117 — 268s 118 — 268s 118(2) — 268s 119 — 268s 119(2) — 268s 123 — 268s 124 — 268s 129 — 268s 130 — 268s 131 — 268s 131(2) — 268s 133 — 268National Consumer Credit ProtectionAmendment (Enhancements)Bill 2011 — 307National Credit Codes 72 — 268s 74 — 268Therapeutic Goods Act 1989 — 178–80, 237Therapeutic Goods Regulations 1990 — 179–80Pt 5A — 181Sch 16 — 181Tobacco Plain Packaging Bill 2011 — 154Trade Practices Act 1974 — 194, 234–35, 261, 266s 45 — 200s 52 — 234s 66(2) — 268s 74B — 234, 237–38, 264s 74D — 234, 237–38, 264s 74D(3) — 238, 268s 75AC — 238–39s 75AD — 233, 234, 238s 75AK(1)(c) — 234, 238s 75B — 233s 75D — 233State and territoryFair Trading Acts — 194, 261Sale of Goods Acts — 261–62Australian Capital TerritoryCivil Law (Wrongs) Act 2002 No 40Pt 2.5 — 263Sale of Goods Act 1954 — 262316australian product liability reporter October 2012

New South WalesCivil Liability Act 2002Pt 4 — 194–95, 262s 3A — 263s 3A(1) — 194s 3A(2) — 196s 34(1) — 194s 34(1)(a) — 194s 34(1A) — 194s 34(2) — 194s 34A — 194s 35(1)(a) — 194–95s 35(1)(b) — 195s 35(3)(a) — 195s 35A — 195s 36 — 195s 38(2) — 195s 39 — 195Compensation to Relatives Legislation Amendment (DustDiseases) Bill 2012 — 226Law Reform (Miscellaneous Provisions) Act 1946s 5 — 194Sale of Goods Act 1923 — 262Northern TerritoryProportionate Liability Act 2005Pt 2 — 262Sale of Goods Act 1972 — 262QueenslandCivil Liability Act 2003Pt 2 — 262–63s 7 — 263Sale of Goods Act 1896 — 262South AustraliaLaw Reform (Contributory Negligence and Apportionmentof Liability) Act 2001Pt 3 — 263Sale of Goods Act 1895 — 262TasmaniaCivil Liability Act 2002Pt 9A — 262s 3A — 263Sale of Goods Act 1896 — 262VictoriaGoods Act 1958 — 262Wrongs Act 1958 — 194Pt IVAA — 262Western AustraliaCivil Liability Act 2002Pt 1F — 262s 4A — 263Sale of Goods Act 1895 — 262CanadaCanada Agricultural Products Act — 190Competition Act RSC 1985, c C-34 — 299s 52 — 299Consumer Packaging and Labelling Act — 190Consumer Packaging and Labelling Regulations — 190Consumer ProductWarranty and LiabilityAct 1978 — 306Consumer Protection Act 1996 — 306Customs Act — 190Export and Import Permits Act — 190Farm Products Grades and Sales Act — 190Fish Health Protection Regulations — 190Food and Drugs Act — 190Food and Drugs Regulations — 190Fresh Fruit and Vegetable Regulations — 190Nutritional Labelling Regulations — 190Processed Products Regulations — 190Sale of Goods Act (Ontario) — 182–83s 15(2) — 183European UnionConsumer Alternative Dispute Resolution Directive 2009/22/EC — 285E-commerce Directive — 281General Product Safety Directive 2011/95/EC — 167,169Lifts Directive — 166Machinery Directive — 166Medical Devices Directive — 166Product Liability Directive 85/374/EEC — 204–06,207, 209, 219Art 4 — 204Art 7(d) — 205Art 7(e) — 205Art 9 — 205Art 13 — 204Art 21 — 204Regulation (EC) No 339/93 — 166Regulation (EC) No 765/2008 — 166, 169, 272–73Arts 27–29 — 272–73Art 27 s 2 — 272Art 28 — 273Art 28 s 1 — 273Ch III — 272Regulation(EC)No864/2007(RomeIIRegulation) — 159–60Art 5 — 159–61Art 5(1) — 160australian product liability reporter October 2012 317

Art 5(1)(c) — 159–60Art 23 — 161Regulation (EC) No 2006/2004 — 285Toy Safety Directive 88/378/EEC — 197–98Toy Safety Directive 2009/48/EC — 197–98Annex I — 197Annex II — 197–98Toys Directive — 166GermanyAppliance and Product Safety Act — 166Civil Codes 280(1) — 256s 439(2) — 256s 478(2) — 256s 823(1) — 256Code of Civil Procedures 114 — 256Consumer Information Act — 217Consumer Protection Act — 217–18Product Liability Act — 166–67, 257Art 1.2(2) — 219–20Art 1.2(5) — 219Art 1.4 — 219Art 3.1 — 219s 1 — 257s 4(1) — 257s 4(2) — 257Product Safety Act — 166–67, 217s 6(4) — 217–18HollandCivil CodeArt 6:2 — 221Art 6:248 — 221ItalyCivil CodeArt 1223 — 224–25Consumers Code, Legislative Decree No 206/2005s 140 — 162–63New ZealandAlcohol Law Reform Bill 2010 — 309Alcohol Reform Bill 2010 — 306Auctioneers Act 1928 — 302Building Act 1991 — 305Building Act 2004 — 305s 396 — 308s 397 — 308Carriage of Goods Act 1979 — 307Consumer Guarantees Act 1993 — 240, 268, 307Consumer Law Reform Bill 2011 — 240–42, 307cl 5 — 303cl 9 — 307cl 14 — 307cl 14(1A) — 307cl 15 — 307cl 18 — 307cl 21 — 307cl 35 — 307cl 36 — 307cl 39 — 307cl 40 — 307cl 66 — 307cl 67 — 307Credit Contracts Act 1981 — 301Credit Contracts and Consumer FinanceAct 2003 — 301s 7(2) — 306s 11 — 306ss 41–44 — 306ss 55–59 — 306ss 117–131 — 306Sch 1 — 306Credit Contracts and Consumer Finance AmendmentBill (draft) — 302cl 9B(2)(b) — 307cl 9B(2)(c) — 307cl 9B(2)(e) — 307cl 9B(2)(f) — 307Dietary Supplements Regulations 1985 — 308Disputes Tribunal Act 1988 — 306Door to Door Sales Act 1967 — 301Fair Trading Act 1986 — 240, 242, 301s 9 — 303s 13 — 303s 31 — 307s 36K — 307s 36U — 307Financial Advisors Act 2008 — 304s 33 — 308Financial Advisors (Disclosure) Regulations 2010Sch 1 — 308Financial Markets Authority Act 2011 — 304s 8 — 308s 9 — 308Financial Markets Conduct Bill — 304cl 3 — 308Financial Service Providers (Registration and DisputeResolution) Act 2008 — 304Financial Services Act 2008s 3 — 308Gambling Act 2003 — 308s 3 — 308s 310 — 308Gambling (Gambling Harm Reduction) Bill 2010 — 305cl 8 — 305318australian product liability reporter October 2012

Hire Purchase Act 1971 — 302KiwiSaver Act 2006 — 308s 9 — 308s 16 — 308Layby Sales Act 1971 — 301Medicines Act 1981 — 305Natural Health Products Bill 2011 — 308cl 4 — 308Sale of Goods Act 1908 — 307Sale of Liquor Act 1989 — 306Secondhand Dealers and PawnbrokersAct 2004 — 307Securities Act 1978 — 308Securities Markets Act 1988 — 308Smoke-free Environments Act 1990 — 306Smoke-free Environments (Controls and Enforcement)Amendment Bill 2010 — 308Superannuation Schemes Act 1989 — 308Therapeutics Products and Medicines Bill 2006 — 305Unit Trusts Act 1960 — 308Unsolicited Goods and Services Act 1975 — 301Weathertight Homes Resolution ServicesAct 2002 — 308Weathertight Homes Resolution ServicesAct 2006 — 305Weights and Measures Act 1987 — 305SingaporeConsumerProtection(FairTrading)Act(Cap52A) — 249–50Pt III — 252s 4 — 250s 6 — 250Sch 2 — 250Consumer Protection (Fair Trading) Amendment Bill(Amendment Bill) — 252–53Consumer Protection (Safety Requirements) Regulations(Cap 53, Regulation 1) — 250Consumer Protection (Trade Descriptions and SafetyRequirements) Act (Cap 53) — 250s 4 — 250Health Products Act (Cap 122D) — 250–51s 42 — 250s 44 — 251s 49 — 251Hire-Purchase Act (Cap 125) — 253Misrepresentation Act (Cap 93) — 250Road Traffic Act (Cap 276) — 253Rules of CourtO 15 r 12 — 252Sale of Goods Act (Cap 393) — 249s 14 — 249, 252s 14(2) — 249, 253s 14(2)(c) — 253Supply of Goods Act (Cap 394) — 249s 4(3) — 249Unfair Contract Terms Act (Cap 396) — 249s 2 — 249s 6 — 249Sch 2 — 249Wholesome Meat and Fish (Processing Establishmentand Cold Stores) Rules (Cap 349A, Rule 3) — 250–51r 9(3) — 251United KingdomConsumer Protection Act 1987 — 207, 209Fair Trading Act 1973 — 307Sale of Goods Act 1979 — 267s 14(6) — 268Sale of Goods (Amendment) Act 1994 — 268s 14(2A) — 268s 14(2B) — 268Supply of Extended Warranties on Domestic GoodsOrder 2005 — 307Supply of Goods (Implied Terms) Act 1973s 7 — 268Toys (Safety) Regulations 1995 — 197Toys (Safety) Regulations 2011 — 197–99Pt 2 — 198reg 4 — 197reg 5 — 197reg 5(2) — 197reg 5(3) — 197reg 5(4) — 197reg 5(5) — 197reg 11 — 198reg 12 — 198reg 15 — 198reg 17 — 198reg 17(5) — 198reg 18 — 198reg 20 — 198reg 20(7) — 198reg 20(9) — 198reg 23 — 198reg 32 — 198reg 37 — 198Unfair Contract Terms Act 1977 — 249UnfairTermsinConsumerContractsRegulations1999 — 307United StatesAirTransportationSafetyandSystemStabilizationAct — 214Consumer Product Safety Act — 189Drug Price Competition and Patents Restoration Act of1984 — 171Federal Food, Drug and Cosmetic Act — 171Federal Rules of Civil Procedurer 8(a)(2) — 288r 12(b)(6) — 288–90r 23 — 215australian product liability reporter October 2012 319

23(b) — 233Notice Pleading Restoration Act of 2009s 1504 — 290OccupationalSafetyandHealthAdministrationAct — 291–92United States Code21 USC § 1407 — 21621 USC § 1407(a) — 29649 USC § 40101 — 216320australian product liability reporter October 2012

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EDITOR: Dominique Kane PUBLISHER: Joanne Beckett SUBSCRIPTION INCLUDES: 10 issues per year plusbinder SYDNEY OFFICE: Locked Bag 2222, Chatswood Delivery Centre NSW 2067 Australia For furtherinformation on this or any other LexisNexis product, call Customer Relations 1800 772 772 Monday to Friday8am–6pm EST; email customer.relations@lexisnexis.com.au or visit www.lexisnexis.com.au for information orour product catalogue.Editorial enquiries: dominique.kane@lexisnexis.com.auISSN 1034-4608 Print Post Approved PP 255003/00768 This newsletter may be cited as (2012) 22(10) APLRThis newsletter is intended to keep readers abreast of current developments in the field of product liability law. It is not,however, to be used or relied upon as a substitute for professional advice. Before acting on any matter in the area, readersshould discuss matters with their own professional advisers. This publication is copyright. Except as permitted under theCopyright Act 1968 (Cth), no part of this publication may be reproduced by any process, electronic or otherwise, withoutthe specific written permission of the copyright owner. Neither may information be stored electronically in any formwhatsoever without such permission. Inquiries should be addressed to the publishers.Printed in Australia © 2012 Reed International Books Australia Pty Ltd trading as LexisNexis ABN: 70 001 002 357322australian product liability reporter October 2012