Product Liability

Manufacturers, retailers and distributors are liable for defective and hazardous products

According to South African law, manufacturers, retailers, distributors and suppliers can be held liable for damages caused by defective or hazardous products.

The Consumer Protection Act of 2008 was introduced to protect South African consumers from manufacture flaws or defects in goods, whether locally made or imported.

The Act designates clear solutions for those injured by defective products. As a result of the Act, the consumer is no longer responsible for proving fault or negligence in a product liability claim.

The entire supply chain, from manufacturer to retailer, is bound by law to ensure that all products are safe for their intended uses.

Have you been injured?

If you suffer an injury due to a defective product, you may be able to claim damages such as:

• Current medical expenses due to the treatment required for physical or psychological damages suffered as a result of the defective product
• Future medical expenses and hospital costs should you need prolonged medical treatment or follow up treatment, such as physical therapy or therapy
• Current and future loss of earnings or support. If the damages suffered are severe enough to impede your ability to earn an income, or maintain your livelihood, you may be awarded compensation equal to what is deemed adequate.  
• General damages for 'pain and suffering' caused by the injuries. This includes any psychological trauma you have suffered as a result of the defective product.
• Legal expenses involved in pursuing the case. If your claim is successful, the Judge may rule that the Defendant must cover the costs of your legal representation.

What do you do?

If you have suffered an injury due to an inferior product, it is necessary to contact the CPA as well as the manufacturer of the product. When launching a claim with the CPA, you will need to have proof of purchase as well as proof of defect, although it is not your responsibility to prove you the source or cause of the defect.

When laying a claim against a manufacturer or seller, it is also wise to consult with legal experts for the necessary expert advice.

If you have suffered medical injuries as a result of the defective product, you will need to provide your medical documents and invoices. When your claim goes before the CPA, it will be investigated by a tribunal, whose first step will be to try and mediate a settlement between the parties. Failing a successful mediation, the claim will then go before the tribunal as a trail, where the manufacturer must prove to the tribunal that the product was either used incorrectly or the cause of the defect was not a result of any party in the supply chain.

You must ensure you seek the necessary advice as soon as possible as well as ensuring you have no hand in the cause of the defect.

It's not always so simple...

Product liability claims are often complicated, and each claim is unique, posing different sets of challenges and needs. An in-depth investigation into the origins of a product and the supply chain may be necessary to accurately identify the defendant for a product liability claim.

The product may also need to be subjected to official product testing, to prove that a product failed to meet the required standards set out by the South African Bureau of Standards (SABS), subsequently causing harm.

The common law of sale, a seller is responsible to the consumer for any defect in goods. Additionally, the seller of goods is liable for consequential damages in certain instances, including if the seller is the manufacturer of the goods or holds himself as having the necessary skill and knowledge in relation to the goods sold. In these cases, the consumer and seller would have been in a direct, verbal or written, contractual relationship. A seller’s responsibility under the law in relation to manufacturer defects could be excluded by a contract, therefore abdicating the seller from responsibility. 

Claims for injuries caused by defective products can also be made under the law of delict.

This is when there is no contractual relationship between the manufacturer or supplier of a defective product and the person who uses it and consequently suffers an injury. In the past, The Supreme Court of Appeal imposed strict no fault liability, where a delictual claim was launched against a manufacturer, who did the sell the product directly to the consumer. Thus there was no contract between the manufacturer and the consumer. The Court ruled that the principles which are applicable under the law of sale could not simply be applied onto a situation governed by the law of delict.

The Court decided that if strict liability for defective goods were to be imposed, it was the legislature that had to do so.

The CPA was instituted on the 1st of April 2011. One of the major additions to the law was the removal of the onus of responsibility from the consumer. In the past, the consumer would have had to prove that the product was indeed defective from the manufacturer. Now, the onus lies on the supplier to defend the claim. Each part of the supply chain for a product can be held equally liable if it can be shown that they all were negligent in the process.

Any injury caused by a defective product, inadequate instructions for use or the lack of appropriate warnings can be claimed against.

But...

Suppliers such as a distributor who supplies an unsafe product or a product without adequate warnings may escape liability if he can show that the defect or the hazard was not present at the time that he sold or supplied the defective product and who is not the manufacturing party or importing party. Providing he can show that it would have been unreasonable to have expected that distributor or retailer to have discovered the problem with the product. On the basis of section 61 of the CPA, the consumer is no longer required to prove that the manufacturer or any other person in the supply chain acted negligently in manufacturing or supplying the defective product, you will still have to prove the existence of a defect or hazard in the product and you will need to prove that this was the cause of the injury suffered.

The object of the CPA is to protect all small consumers or small businesses, transactions between suppliers and larger corporations are not subject to the CPA. However, regardless of the size of corporate entity that suffers damages due to the supply of an unsafe, defective or hazardous product, will be able to claim damages from the producer, importer, distributor or retailer of the defective product.

Compensation

If you have suffered medical injuries due to a defective product, you can claim for compensation for the costs incurred. You are also entitled to a replacement product that is safe or a refund of your money. In the case of minor defects, it may not be worth the expenses involved in pursuing a civil suit, however, due to the CPA, any injury incurred from a defective product can be claimed against, no matter how small.

The CPA is publicly accessible and does not require you hire legal services, however, when launching a claim against a manufacturer it is wise to have an expert assess the validity of your claim.