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SA Australian Consumer Law - Choking Hazard Claim?

Discussion in 'Australian Consumer Law Forum' started by peter spain, 3 September 2015.

  1. peter spain

    peter spain Member

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    I was driving home from the gym as I do every afternoon drinking my protein shake when I suddenly started seriously choking on a plastic desiccant capsule and I lost control of my vehicle at high speed (within the speed limit) and crashed into a tree, injuring myself and totalling my car.

    I now know after buying that brand of supplement again that the desiccant came from the protein powder supplement. There is no mention that this is in the powder anywhere and it is very easy to just scoop up with the large scoop provided and accidentally put it into your drink and choke.

    I'm not sure if I have a case under Australian Consumer Law here because of our driving laws... all I know is that this situation would have been avoided had I known that this desiccant was even in the supplement to begin with! Even if I wasn't driving a car I still would of choked on it!
     
  2. Tim W

    Tim W Lawyer

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    Have you been given an infringement, or have you been charged?
    Or is this more about insurance?
     
  3. peter spain

    peter spain Member

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    No, no infringement and im not really worried about my car or injuries sustained from it, I'm more concerned about the fact they even put something like that into a powder to begin with, I would like to know what I can do about it legally to just stop it from happening to other people all together. No one should be choking on something, the experience was terrifying.
     
  4. AnnaLJ

    AnnaLJ Well-Known Member

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    Hi Peter

    I'm sorry to hear about your accident.

    Ordinarily, I would be pointing you straight to the Australian Consumer Law and talking about any consumer guarantees that may be applicable, as well as any warnings or representations on the packaging that might affect or limit the manufacturer's liability.

    However, even if there were a very clear case here of a breach of the consumer law, my concern would be that you were doing something illegal at the time the damage occurred (ie drinking while driving).

    You could try calling Consumer Affairs in your state or the ACCC for some advice, though the most practical way to approach this (if your true intent is to protect others from being injured) may be to write to the company and suggest they include some additional warnings on their product labelling. This would not be a legal approach, but from the information provided I am not aware of any legal avenues you could take.

    Others may have some other ideas though?

    All the best
     
  5. Tim W

    Tim W Lawyer

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    Well, if it's simply a question of food safety,
    then you may get some useful advice from the Food Safety & Nutrition Branch in SA Health
     

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