Updated product safety mandatory reporting guidance for suppliers now available

Today the Australian Competition and Consumer Commission (ACCC) published its updated Mandatory Reporting Guideline to help businesses understand and comply with their mandatory reporting obligations.

The updated guideline also recommends voluntary reporting of incidents that do not meet the mandatory reporting requirements, such as near misses, to help provide the ACCC with an early indication of product safety issues.

Businesses can now find new mandatory reporting information and tools on the Product Safety Australia website, including a:

  • quick guide that summarises obligations, making it easier for businesses to understand what they must do
  • template notice that suppliers may use to help inform staff about processes for mandatory reporting
  • questionnaire to help businesses ask relevant questions when reporting an incident
  • flowchart to determine if an incident must be reported

Why mandatory reporting is important to your business

Businesses must submit a mandatory report when they become aware that the use or foreseeable misuse of a consumer product they have supplied has caused, or may have caused, a death, serious injury or illness.

Mandatory reporting of deaths or serious injuries or illnesses from consumer products or product related services also helps the ACCC identify emerging hazards and risks, so action can be taken to prevent similar injuries, illnesses, or fatalities.

Mandatory reports are confidential and are not an admission of liability. However, if a business does not submit a mandatory report, where a report is required, they may be found guilty of a criminal offence and need to pay either $3,330 for an individual or $16,650 for a body corporate.

Your obligations

Businesses must submit a mandatory report within 2 days if they become aware that the use, or foreseeable misuse, of a consumer product they have supplied caused, or may have caused, a death or serious injury or illness. They can do this by using the ACCC online mandatory reporting form.

Businesses required to report

All businesses in the supply chain of a consumer good or product related service must submit a mandatory report. This includes businesses who install, import, manufacture, retail, clean, repair or assemble consumer goods.

Reporting to another agency

In some limited circumstances, businesses do not need to submit a mandatory report if they are required to report the incident to another specialist safety agency. This includes road vehicle accidents, deaths reported to a coroner, food-borne infectious diseases, and incidents involving agricultural and veterinary chemicals.

Voluntary reports

When a business assesses that a mandatory report is not required, we recommend that they submit a voluntary report to help the ACCC monitor potential safety risks and trends to prevent a death or serious injury or illness.

This includes reporting incidents that could have caused a death or serious injury or illness but, on this occasion, did not, for example:

  • a near miss
  • a serious injury or illness that developed slowly over time and is not acute
  • a pre-existing condition contributed to the death or serious injury or serious illness
  • the serious injury or illness was treated by someone who is not a medical doctor or a nurse, such as a dentist or physiotherapist
  • the incident was caused by the consumer good being misused in an unforeseeable way.

Advice for consumers

The ACCC encourages consumers to contact the business in the first instance to report a death or serious injury or illness caused by a consumer product. Consumers can also choose to report a product to the ACCC that they consider to be unsafe.

Background

This guidance material has been developed by the ACCC in response to stakeholder feedback seeking further guidance and practical examples to assist businesses to comply with their mandatory reporting obligations.

More information

Mandatory Reporting Guideline

Over 155,000 cars with deadly Takata airbags still on the roads says ACCC

According to ACCC’s Product Safety Australia (31 July 2020 https://www.productsafety.gov.au/news/over-155000-cars-with-deadly-takata-airbags-still-on-the-roads) at least 155,000 vehicles containing potentially deadly Takata airbags are still on our roads and with less than six months before manufacturers are expected to complete their recall of these vehicles, the ACCC is urging consumers to check if their vehicles are affected and if so book them in for replacement.

According to the latest ACCC figures on the compulsory recall, about 180,000 airbags (4.4 per cent of all airbags subject to this recall) in more than 155,000 vehicles (5.1 per cent of affected vehicles) are yet to be replaced.

“These airbags are extremely dangerous and have the potential to misdeploy, sending sharp metal fragments into the vehicle cabin at high speed, with the potential to kill or seriously injure the occupants,” ACCC Deputy Chair Delia Rickard said.

“It is essential that you do not ignore or delay responding to notices about the recalls from your manufacturer. If your vehicle is under active recall, please act now to arrange for a free replacement.”

More than 6,000 of those vehicles are so dangerous that they should not be driven at all. These vehicles contain the highest risk ‘critical’ airbags, and states and territories will be de-registering them to take them off our roads. Some states and territories are also preventing re-registration of unregistered vehicles unless there is evidence that the affected airbag has been replaced.

“If your vehicle contains a ‘critical’ airbag, you should stop driving it immediately and contact the manufacturer to arrange for it to be towed or a technician to be sent to you so the airbag can be replaced,” Ms Rickard said.

Consumers who imported a vehicle directly into Australia from overseas are urged to contact the vehicle manufacturer’s Australian office to see if it is affected by the recall, and those who imported a vehicle using a business in Australia should check this with the business, and arrange airbag replacements if needed.

In the past three months, more than 40,000 vehicles have had their airbags replaced despite the pandemic, and a further 2,250 vehicles have been identified as no longer on the road. On average, more than 3,100 airbags have been replaced each day since the compulsory recall began in March 2018.

“There are only six months left for manufacturers to meet their replacement obligations, and while the compulsory recall is progressing well, it is important to get these remaining deadly airbags off our roads,” Ms Rickard said.

“Checking ismyairbagsafe.com.au to see if your vehicle is affected, and getting the airbag replaced if it is, is an essential step to preventing more deaths and injuries.”

Takata fast facts
As at 30 June 2020:

In total about 3.66 million airbag inflators (89.2%) have now been rectified in about 2.68 million vehicles (87.8%).
This leaves 180,869 airbag inflators (4.4%) in 155,351 vehicles (5.1%) remaining for replacement.
An additional 262,725 airbags (6.4%) in 218,393 vehicles (7.1%) were reported by suppliers as unrepairable (written off, unregistered for more than two years, exported, scrapped, stolen, or modified and unable to have the airbag replaced).
There are 1,334 vehicles with critical-alpha airbags and 4,718 vehicles with critical non-alpha airbags outstanding for replacement.
Vehicles with critical airbags should not be driven, and drivers are entitled to have their vehicles towed to the dealership to have the airbag replaced for free.
Notes to editors
The Takata airbag recall is the world’s largest automotive recall, affecting an estimated 100 million vehicles globally.
It is the most significant compulsory recall in Australia’s history, with over four million affected Takata airbag inflators and involving more than three million vehicle recalls.
Takata airbags affected by the compulsory recall use a chemical called phase-stabilised ammonium nitrate (PSAN). The ACCC’s investigation concluded that certain types of Takata PSAN airbags have a design defect. The defect may cause the airbag to deploy with too much explosive force so that sharp metal fragments shoot out and hit vehicle occupants, potentially injuring or killing them.
In addition to the compulsory recall of vehicles fitted with Takata PSAN airbags, eight vehicle manufacturers have also issued voluntary recalls for some vehicles manufactured between 1996 and 2000, which may have been fitted with a different type of faulty Takata airbag, being a NADI airbag. The Department of Infrastructure, Transport, Regional Development and Communications monitors the NADI voluntary recalls.

Product liability

Source: www.fasterway.com.au

This is a typical fracture surface. This is a threaded connection (hence the appearance of a depression around the circumference).

The fracture surface was smooth, flat, and perpendicular to the principal axis of the bolt. Crack progression marks (beach marks) extended radially from one side of the bolt and covered approximately 90% of the fracture surface area. The remaining small region towards the outer edge of the bolt exhibited features consistent with an overstress failure. The large area of fatigue cracking and small overstress area indicated that failure of the bolt was due to high cycle low stress fatigue cracking.

Bolt fracture surface showing evidence of fatigue crack progression (beach) marks

Bolt fracture surface showing evidence of fatigue crack progression (beach) marks

Source: ATSB

On 30 May 2015, a Fasterway powered parachute, recreational registration 19-7677, collided with terrain near Theodore, Queensland. The pilot, the sole occupant, died as a result of the accident.

Submitted eyenut and fractured bolt

Source: ATSB – Investigation title: Technical assistance to Recreational Aviation Australia in the examination of a fractured eyebolt from the collision with terrain involving a Fasterway Powered Parachute, near Theodore, Qld. on 30 May 2015

Investigation number: AE-2015-075

Failure to pass a Standard does not of itself establish negligence

Garrett v Hills Industries [2006] QDC 299 –  Even if a device of product failed to pass all relevant tests of the Australian standard, this would not, of itself, establish negligence: O’Connor v Hansen Wilckens Hornibook Constructions Ltd (1968) 42 ALJR 239; Crisa v John Shearer Ltd (1981) 27 SASR 422 at 428.

Failure to follow a standard does not, without more, establish negligence: O’Connor v Hansen Wilckens Hornibrook Constructions Ltd (1968) 42 ALJR 239, 242; Jones v Bartlett [2000] HCA 56; (2000) 205 CLR 166 [110]; Scope Machinery Pty Ltd v Ross [2009] WASCA 100 [43].

It is for the court to adjudicate upon what is the appropriate standard of care: Lanza v Codemo [2001] NSWSC 845 [169]; Francis v Lewis [2003] NSWCA 152 [43].

Even compliance or noncompliance with statutory construction requirements will not be determinative of the issue about whether reasonable care has been taken (Jones v Bartlett [23]).