No doubt most of us are aware of the debacle Samsung is currently facing with their latest model mobile phone, the Galaxy Note 7.

For those that aren’t, or perhaps don’t know the full extent of the problem, Samsung has recalled the Galaxy Note 7 due to a faulty battery cell that causes the battery to overheat and possibly explode when charging. Samsung has confirmed it is aware of 35 such cases in South Korea and in other countries. They have also suspended sales in 10 countries, including South Korea and the United States, and begun a recall of the phones.

Although (at the time of writing this article) no mobile phone batteries have exploded here in Australia, we have decided to take a look at what rights consumers have if they sustain an injury from faulty products such as the Samsung Galaxy Note 7.

How is a faulty product defined?

Unsafe or faulty products are governed by the Competition and Consumer Act 2010 (Cth) (“the Act”). The Act assigns many guarantees to the supply of goods and services to consumers. With respect to faulty and unsafe products, the Act states that when goods are supplied to a consumer there is a guarantee that the goods are of acceptable quality, being:
  • Fit for all the purposes for which goods of that kind are commonly supplied; and
  • Acceptable in appearance and finish; and
  • Free from defects; and
  • Safe; and
  • Durable
And a reasonable consumer fully acquainted with the state and conditions of the goods (including any “hidden defects” of the goods), would regard the goods as acceptable when considering the following:
  • The nature of the goods; and
  • The price of the goods (if relevant); and
  • Any statements made about the goods on any packaging or label on the goods; and
  • Any representations made about the goods by the supplier or manufacturer of the goods; and
  • Any other relevant circumstances relating to the supply of the goods.
If this particular guarantee is not complied with (such as the supply of a unsafe or faulty product), and a consumer is injured as a result, then that consumer has the right to bring a claim under the Act as a result of this contravention.


What if a faulty product causes injury?

In addition to the statutory rights under Australian Consumer Law those that suffer personal injury as a result of a defective or faulty product may have the right to bring a common law claim for damages against Samsung for their negligence and the injuries this caused. A consumer in the US is currently pursuing a personal injury claim against Samsung for a second degree burn sustained to his right thigh from his Samsung Galaxy Note 7 burning through the pocket of his pants.

The timing of the injury is particularly important as it occurred after Samsung’s own replacement program was in place but before the phone was officially recalled in the US, suggesting that Samsung were aware of the problem and had failed to take any formal steps to recall the faulty product. However, how the injury occurred may be called into question, as the fault has been linked to the phones overheating when placed on charge only.


What are your options as a consumer?

To be successful in a common law claim for negligence against Samsung here in Queensland, an injured person must prove that Samsung owed them a duty of care and that this duty of care was breached. They must be able to show that Samsung supplied them with a product that was either unsafe, defective, or didn’t come with appropriate warnings.

Further, it appears that Samsung was aware of the faulty battery cell well prior to their worldwide recall, with shipments of the phone delayed due to additional testing for product quality being carried out in late August 2016.

Each case should however, be individually investigated to ensure that negligence can be made out. If a breach of this duty of care can be established by an injured person, they will be entitled to compensation for their losses. Such losses can include payment for pain and suffering, reimbursement for losses already suffered, and losses the injured person is likely to suffer in the future including treatment expenses and the impact the injury may have on one’s future ability to continue working.


What should you do if you purchased a faulty Galaxy Note 7?

Samsung suspended sales of its Galaxy Note 7 and began a worldwide recall of the phone on 2 September 2016. The recall of the phone was announced here in Australia on 6 September 2016 and customers who have purchased the phone are encouraged to power down their device and return it to its place of purchase for either a replacement or a full refund. Replacement phones are expected to arrive within 3 to 4 weeks.

For those that have been injured by the faulty mobile phone battery they will need to prove that Samsung’s negligence caused their injury before they are entitled to compensation under a common law claim for damages. The amount of the damages recoverable by an injured person will be awarded according to that person’s individual set of circumstances, but will be based upon the actual injury suffered, and the impact that injury has had, and will continue to have, on the life of the injured person.

Any individual who has sustained injuries due to a faulty product should seek legal advice immediately, as strict time limits apply to these claims in Queensland. If you believe you are entitled to compensation due to an injury caused by a faulty product, you can call Gouldson Legal for a free consultation about your best path forward.

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