Manufacturer ordered to pay damages in compensation for defective/faulty knee pads
Published 04 Sep 2018
Our client was a floor tiler operating his floor tiling business in the Central Coast region of New South Wales. He had been operating as a floor tiler for many years. He purchased a pair of knee pads from an international household hardware chain for the purposes of undertaking his work as a floor tiler. Whilst our client was going about his work in the course of tiling he turned to pick up a tile when his right knee pad rolled to the side of the plastic plate causing him to suffer substantial injury to his right knee as it struck and twisted on a hard surface.
As a result of the injury to the right knee our client required surgery from which he did not recover from. Due to his right knee disability he then developed problems with his left knee which were a consequential injury from the initial right knee injury. Our client tried to return back to work and was unable to return to his floor tiling business. He was unable to undertake work which was a physical nature, particularly, in the use of both knees or any work which required repetitive lifting, bending and twisting and use of his legs as he had been under taking as a floor tiler for many years. The injury left him permanently disabled and this caused him significant physical, emotional and financial distress.
Our client consulted us in seeking legal advice as to the prospects of pursuing a claim against the manufacturer of the knee pads as the knee pads were defective and faulty. Enquiries were undertaken and determined the manufacturer of the product being the knee pads to be used by tradesmen such as tilers like our client and to be used whilst working on the ground for long periods of time to protect their knees from being exposed to a hard surface and prevent injury.
The knee pads compromised of an outer layer of plastic and rubber to wear over the knee to be secured and held in place by velcro fabric designed to withstand the pressures and strains of persons working on floors such as tilers and further that the said product would stay in place and continue to guard the knees whilst secure totally around the leg by a strap held together by a velcro grip. As our client was a consumer was entitled to bring the proceedings pursuant to the australian consumer law.
We had the knee pads examined by an expert who provided a liability expert opinion after assessing and testing the knee pads. There was compelling evidence of decomposition in the latex lining of the knee pads. He found that the designed defect is in the selection of material used in the knee pads. Specifically, with the friable latex internal lining, the materials is susceptible to the grading effects of sweat and chemicals and cement based products involved in tiling. The material was badly degraded and not fit for its purpose. The expert also determined that the product would not satisfy the workplace health safety and occupational health and safety regulations for personal protective equipment because it deteriorated so quickly within days after purchase of the knee pads. The defect in the construction or materials of the knee pads was the abrupt degradation of the cushioning latex materials which is not fit for it purpose. The expert further found that the knee pads were not fit for the purpose for use in a floor tiling trade requiring significant physical effort and support for the lower body on hard flooring surfaces, often in sweating conditions and temperature.
A letter of claim was made against the manufacturer of the product. They undertook their own internal investigations and denied liability in the matter.
We launched legal proceedings against the manufacturer of the knee pads. Our client informed us that those knee pads were no longer in stock and removed from stock by the manufacturers and new knee pads were provided which were of a more suitable quality. It was alleged that the manufacturers product being the knee pads had a safety defect within the meaning of the australian consumer law legislation, namely that the safety of the goods was not of such that general persons were entitled to expect.
The particulars of negligence included that the knee pads despite being designed for persons such as tilers, became loose exposing the knee when fastened by the velcro grip, and that the knee pads, despite their design for persons such as tilers, had inadequate supporting material which quickly decomposed when coming into contact with human perspiration being the material attached to the pad and joining up with a velcro grip; (iii) the material component of the knee pads weakened within a short period of time after use such that the knee pads did not stay in a fixed position when being used but rather slipped or moved to one side exposing the clients body, in particular his knee, to a hard surface causing injury; (iv) the strapping was made from an inferior material and was weak which deteriorated rapidly as opposed to securely holding the knee pad into place when the clients weight was applied to the knee pad and a hard surface for the purposes of tiling; (v) the velcro strapping did not hold in place but deteriorated or was inherently weak occurring within a short period of time after use despite it being designed and held out to consumers as being suitable for rigorous stresses for activities such as tiling; and (vi) the material surrounding the knee pad and velcro grip was defective.
It was alleged that the knee pads had a defect being a safety defect which resulted in our client suffering significant injuries, losses and damages. Our client’s injuries included medial meniscus tear of the right knee posterior horn medical meniscus tear, effusion and quadriceps atrophy, subtotal medial meniscectomy and associated scarring, removal of loose flaps of articular cartilage by chondroplasty, distress, psychological injury and shock. We obtained medical reports from our client’s treating doctors and specialists and had our client independently medically examined and assessed. We also obtained a liability expert report after the knee pads had been examined and tested. The defendant manufacturer obtained their own medico legal assessments and liability expert’s reports and the matter was listed for hearing for the determination of the liability and medical issues. The court ordered that the matter be referred to a mediation hearing between the parties prior to the hearing of the matter.
At the conclusion of the mediation hearing the manufacturer was ordered to pay our client a substantial award in damages in compensation for its negligence in causing our client’s injury, losses and damages. Considering that the manufacturer had denied liability and denied that it would pay any amount of compensation in relation to our client’s claim, it was a very good outcome to the proceedings against the manufacturer of the product which provided knee pads which had a safety defect in causing our client’s injuries, losses and damages.
If you are a customer or consumer and you purchase a product which has a safety defect and it is not fit for the purpose for which it was purchased, and as a result of this, you suffer a serious injury, you may be able to pursue a claim in damages for compensation against the manufacturer for your injuries, losses and damages providing that you can establish negligence and fault against them in the design and manufacturer of the product which caused your injury.
You would need to obtain liability and medical expert evidence to establish that the manufacturer was negligent in causing your injuries, losses and damages. In this case, our client was a floor tiler and he purchased knee pads for the purposes of his trade and whilst using the knee pads he suffered a serious injury. The liability expert evidence found that the knee pads had a safety defect and inadequate supporting material which quickly decomposed when coming into contact with human perspiration and as such the knee pads did not stay in a fixed position when being used. The liability and medical expert evidence supported our client, in his negligence claim against the manufacturer of the product.
At a court ordered mediation hearing the manufacturer was ordered to pay our client a substantial award in damages in compensation for its negligence in causing our client’s serious injuries, losses and damages.
For a free no obligation consultation, please contact our toll free number on 1300 768 780 so that an appointment can be arranged for you to attend our office to protect your legal rights arising from any possible claim you may have against the manufacturer of a defective product which has caused you to suffer serious injuries, losses and damages.