Pharmaceutical product liability and the Australian Consumer Law: Towards a principled approach

A recent article following the enactment of the Australian Consumer Law has criticised the unnecessary existence of multiple causes of action available in product liability claims. An actual example of this and the problems it poses was observed in Peterson vs Merck Sharpe and Dohme, where the plaintiff pleaded five different grounds in seeking compensation for injuries associated with pharmaceutical use. This has triggered a call to re-examine the Australian product liability law landscape, with the possibility of one provision having a pre-emptive effect. This article serves two purposes with its formulation of seven principles. The primary purpose is that the principles may guide the future determination of pharmaceutical product liability claims. However, nothing precludes these principles from also being considered in relation to product liability lawsuits generally. A second purpose is that they may operate as a set of criteria against which the relevant ACL provisions may be assessed, to determine which provision might most appropriately fulfil the pre-emptive role