Where a product has failed and the cause is in dispute, statistical analysis of the likelihood of failure or the rarity of past failure is of little assistance; the relevant question is the comparative likelihood of failure from inherent defect versus failure from improper use. A manufacturer seeking to establish statutory defences under ss 74D(2)(a) or 75AK(1)(a) of the Trade Practices Act must adduce evidence rising above the level of speculative possibility that the defect arose after the goods left its control. Quality control evidence demonstrating that defective products would be rare does not demonstrate a likely absence of defective products.
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