Ina Opperman

By Ina Opperman

Business Journalist

When is a company liable when its goods cause you harm?

The Consumer Protection Act protects your right to fair value, good quality and safety when you buy goods and to get compensation for harm.

A company can be liable when its goods cause you harm but it is not an easy process to prove that it is indeed the product that caused a problem.

The Consumer Protection Act (CPA) makes provision for consumers’ right to fir value, good quality and safety in Part H of the Act and section 61 makes specific provision for the liability of suppliers for damage their goods cause.

However, to start with, consumers and suppliers must remember that section 5 of the CPA provides that the CPA applies to every transaction, agreement, advertisement, production, distribution, promotion, sale or supply of goods or services. Therefore, products cannot be excluded from the provisions of section 61.

Section 61 of the CPA provides that producers or importers, distributors or retailers of any goods are liable for harm caused by the supply of unsafe goods, product failure, defective or hazardous goods. It also applies if the harm is the result of inadequate instructions or warnings given to the consumer.

ALSO READ: What the Consumer Protection Act says about liability for damage

Supplier does not have to be negligent to be liable

This liability arises irrespective of whether the producer, importer, distributor or retailer was negligent and liability is strict subject to certain exceptions set out in the CPA. One exception is if the goods were safe, fully functional and free from the alleged defect or hazard at the time it was supplied to someone else, such as a retailer, alleged to be liable or at the time the goods were supplied to the consumer.

Unless the consumer was expressly informed and expressly accepted goods that are not of good quality, the consumer has the right to receive goods that are reasonably suitable for the purposes for which they are generally intended.

The goods must also be good quality, in good working order, free of defects or hazards, useable and durable for a reasonable period having regard to the normal use and circumstances of their supply.

Therefore, producers, importers, distributors or retailers are prohibited from producing and distributing unsafe goods and the CPA imposes strict liability on producers, importers, distributors and retailers for supplying unsafe goods. Strict liability is also imposed in respect of product failure, defective and hazardous goods.

If you get sick because you ate food that was not kept as cold as it was supposed to, you can claim damages from any or all of the producers, importers, distributors or retailers of the food.

ALSO READ: Consumer Protection Act: These are the activities that customers are protected from

Consumers can sue suppliers for damage or injuries

In terms of section 61 consumers can therefore sue suppliers and manufacturers of goods for damages or injuries suffered as a result of using or consuming the goods, irrespective of whether or not there was any negligence on the part of the supplier or manufacturer.

The harm may arise from a product failure, defect, or hazard, according to the Consumer Goods and Services Ombudsman (GCSO).

The type of harm can include:

  • The death of or injury to any person
  • An illness of any person.
  • Any loss of, or physical damage to any property, irrespective of whether it is movable or immovable.
  • Any economic loss that results from any of these types of harm. Economic loss means indirect financial losses that might result from one of the three types of harm, such as loss of income and medical bills.

ALSO READ: Consumer Protection Act and your rights

When an eye cream burns your face

A consumer approached the CGSO with a complaint about an eye cream she bought that burned her face. The supplier refused to refund her as two weeks had elapsed since the purchase and the company had a seven day return policy.

The consumer wanted a refund of the amount she paid for the eye cream, as well as compensation for the damage to her face.

However, the supplier said it was unable to determine which product caused the reaction since the consumer used other products in conjunction with the eye cream. In addition, she supplier said that the consumer had not followed the application instructions that the cream should only be applied around the occipital bone and that she had to avoid using it on her eyelids or too close to her eyes, which is clearly stated on the packaging.

In addition, the supplier referred to the terms and conditions on its website, clearly stating that refunds will only be considered provided products are returned within seven days of purchase.

The CGSO says although it is not necessary to prove negligence to recover damages, it is still necessary to prove that the damage was indeed caused by the eye cream. Without evidence of this, the ombudsman could not assist any further. The consumer accepted a complimentary eye product from the supplier instead.

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