A medical device implanted in me was later recalled due to defects. Can I claim damages?

What the Law Says

The Australian Consumer Law (ACL), which forms part of the Competition and Consumer Act 2010, provides rights and remedies when goods—including medical devices—are unsafe or defective.

Medical devices implanted in patients are considered 'goods' under the ACL. If a device is found to be defective and causes injury, you may have a claim for compensation under strict liability provisions.

Section 138 of the Competition and Consumer Act 2010 (Cth) imposes strict liability on manufacturers for injuries caused by defective goods. This means you do not need to prove negligence — only that the device was defective and caused harm.

The ACL also includes consumer guarantees under Division 1 of Part 3-2. Section 54 guarantees that goods are of acceptable quality, including being safe and free from defects. A recalled implant strongly suggests it failed this guarantee.

You generally have up to 6 years from the date of injury (or when you reasonably discovered it) to bring a claim under the ACL, though state limitation statutes may apply depending on the cause of action.

Statutory Text

A manufacturer of goods is liable to compensate a person who suffers loss or damage because of a safety defect in the goods supplied by the manufacturer.

— Competition and Consumer Act 2010 (Cth), s. 138 — Liability of manufacturers for defective goods

Statutory Text

Goods are of acceptable quality if they are safe, durable and free from defects...

— Competition and Consumer Act 2010 (Cth), s. 54 — Guarantee as to acceptable quality

What to Do

Sources