Articles

STRICT LIABILITY UNDER THE CONSUMER PROTECTION BILL

Posted 13 February 2009

In the case of Wagener v Pharmacare Ltd; Cuttings v Pharmacare Ltd 2003 (7) BCLR 710 (SCA) the supreme court of appeal refused to impose strict liability on a manufacturing company. In this case the Appellants had each claimed damages for personal injury alleged to have arisen from the administration to them of Regibloc (a local anaesthetic which was manufactured by Respondent) while undergoing surgery. It was alleged that the Regibloc administered was defective as a result of negligent manufacture by Respondent. The court found that Appellants’ remedy was confined to the Aquilian action. The court commented that if strict liability should be imposed, it was the legislature that had to do it. The appeal thus fell to be dismissed.

Six years down the line, the legislature decided to do exactly that! Suppliers are now confronted head on with the issue of strict liability in the Consumer Protection Bill which is ready for promulgation by the President in 2009.  

The new consumer law introduces strict liability for any harm caused as a result of either supplying unsafe goods, product failure; defect or inadequate instructions or warnings. The harm for which a person may be liable includes:

a)      Death;

b)      Injury;

c)      Illness;

d)     Loss of or physical damage to any property(movable or immovable);

e)      Economic loss

You might be wondering what exactly is meant by the term ‘strict liability’? It means that you as a supplier will be held liable for any loss, death etc  irrespective of fault(usually negligence) on your part.

The only form of strict liability  in the common law is for damage caused by animals. The owner of a domestic animal which injures another’s person or property by acting ferociously or contra naturam(against its nature) is strictly liable for any damage which may result.

Apart from the common law, strict liability may be imposed by legislation. This is exactly what the Consumer Protection Bill does. The bill is statutorily imposing strict liability on suppliers for harm caused to the consumer.

This is by far  one of the most controversial sections of  the Consumer Protection Bill with many far reaching consequences.

So what might these consequences be? Take for example a sole trader who does plumbing and electrical work. If, after supplying and installing A CCTV system, the system short circuits and the business premises burn down, then he is liable for all the harm caused including economic loss.

This means that the sole trader is going to have to take out further insurance to cover the possibility of the expenses associated  with defects, unsafe goods or product failure. The cost of increased insurance might be too great for the sole trader and as a result he joins a larger firm of electrians and plumbers that can afford to cover the increased insurance costs.

All in all this is not so good for the consumer. Whereas the sole trader would have been a lot cheaper than the bigger established firms, the possibility of strict liability has now pushed the sole trader out of the market forcing consumers to use the more expensive larger firms.

The imposition of strict liability could also see an increase in civil  liability for the food industry. This approach differs significantly from previous case law dealing with the food and beverage industry. Strict liability is unusual because one of the key elements of a delictual action or a criminal offence  is fault(either negligence or intention). In Amalgamated Beverage Industries (Pty) Ltd v Durban City Council the Appellate division decided against the imposition of strict liability and held that fault liability, in the form of negligence, was required for a conviction of contravening the by- law in question. In this case a consumer had found a bee in the bottom of  a bottle.

In the Constitutional Case S v Coetzee 1997 (3) SA 527(CC), which  was concerned with strict liability and  criminal law, O’ Reagan  commented that strict liability under the criminal law in South Africa was unacceptable.  She further commented that the crime prevention objectives of strict liability can, to a large degree be achieved equally  by negligence- based liability.  Although these remarks were made in the criminal context, one could very easily ask the same question with regard to consumer protection and delictual liability.

Only time will tell whether the provisions of strict liability in the Consumer Protection Bill will withstand constitutional scrutiny. Would negligence-based liability not afford the same amount of  protection to the consumer? In my opinion, it is a very drastic step by the legislature and I am not quite sure  whether the  protection afforded to the consumer outweighs the effect it is going to have on small businesses and the food industry.