Product liability – sue under the common law or CPA?

Written by Dr Sarah-lynn Tennant.

This is a summary of an article written by Dr Tennant. Interested readers can view her detailed analysis here.

Defective goods may expose a consumer to intolerable risks of death, injury, and damage. The question, therefore, arises as to who should be held liable for damage caused by such defective goods, and to what extent.

In the South African legal system, a specialized area of law has developed, which is referred to as “product liability”. Currently, section 2(10) of the CPA68 of 2008 (‘the CPA’) applies, which states that “no provision of this Act shall be interpreted as if it would prevent a consumer from exercising any rights available in terms of the common law.”

Accordingly, this section serves to provide the injured plaintiff with a remedy to bring a product liability claim under the common law or a product liability claim under section 61 of the CPA.

The concern is that the two remedies require different evidentiary criteria and as such are unbalanced. For example, product liability under the CPA is “strict” as section 61(1) does not require proof of negligence, although this must be replaced with proof of a “defect”; while the common law requires negligence to be proved and provision is made for contributory negligence which may be raised as a defence.

To make the choice easier for a consumer, it is suggested that a product liability claim, arising after 24 April 2010, should be instituted under section 61 of the Consumer Protection Act. A main point of this contribution is therefore to consider the common law provisions, compared to section 61 of the Consumer Protection Act, with emphasis on subsection 61(1)(c), a warning defect.

In Pick ′n Pay Retailers (Pty) Ltd v Pillay (900/2020) ZASCA 125, Ms Pillay sued PnP for injuries she suffered when a boom hit her on her head. She successfully sued PnP, but the court found that she was partially the author of our own misfortune in that she should have taken greater care. Accordingly, the court only allowed her 60% of the claim, due to her contributory negligence.

Ms Pillay should rather have chosen to rely on section 61(1)(c) of the CPA. Had she done so it is likely that she would have received 100% of her claim as the requirements prescribed by the Act had been met, particularly:

  • Ms Pillay was a “consumer” per the definition of section 1 subparagraph (c).
  • Ms Pillay suffered physical “harm” per section 61(5).
  • PnP was the “supplier” contemplated by section 61(2). As a supplier, it should have complied with its obligations prescribed in sections 22, 49(2) and 58(1) of the CPA. Such sections demand that PnP should have drawn “the fact, nature and potential effect” of the danger of the boom to the attention of Ms Pillay, in plain and understandable language and in a conspicuous manner. Before approaching the boom, she should have also had an adequate opportunity to receive and comprehend the notice and acknowledge or accept the risk of the boom descending. A notice supplied by PnP after the fact is insufficient to justify compliance with these duties. As PnP failed to comply with these obligations, section 61(1)(c) finds application.
  • An instruction or a warning defect in section 61(1)(c) existed as PnP was liable for the harm caused for failing to provide the necessary caution relating to the boom it controlled and provided access to. The automatic boom thus presented a material loss due to its functionality and use.

It is therefore recommended that section 4(2)(a) of the CPA be adhered to, namely that “the court must develop the common law as necessary to improve the realisation and enjoyment of consumer rights”, in that a consumer who has suffered harm from a defective product should only be allowed to rely on strict product liability in section 61.

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