Defective vehicles, appliances and digital devices have been all over the news recently. Exploding washing machines and smartphones, and spontaneously combusting cars like the now notorious Ford Kuga, have consumers diving for cover.
Every year, flawed products result in serious injuries and thousands of consumer product-related deaths worldwide.
Media attention doesn’t seem to be making products safer either – at least in the United States, it appears that injuries from household products are increasing.
When consumer product-related injuries occur, the question is – who is legally accountable?
What the law says
In South Africa, the Consumer Protection Act of 2008 is a powerful piece of legislation that protects consumer rights. According to the CPA, consumers have the right to claim damages for injuries caused by unsafe or defective products.
The Act clearly specifies that each link in the supply chain is legally responsible for ensuring products are safe for their intended use. Manufacturers, importers, distributors and/or retailers can consequently be held liable for any harm caused if the product is:
- defective, flawed or hazardous
- unsafe to distribute and/or
- sold without adequate instructions or safety warnings.
Section 61 of the Act imposes strict liability for harm caused by unsafe, defective or hazardous goods.
In the event of a product liability claim, this means the consumer does not need to prove negligence by a particular party in the product’s supply chain to establish liability.
Under South African law, manufacturers, retailers, distributors and suppliers can all be held liable for damages caused by defective or hazardous products.
How do you know who to sue?
It’s up to you to identify the people and companies you believe may be liable for damages, and name them in your claim as defendants. As a general rule, you want to include all parties involved in the manufacture and supply of the defective product, in what is known as joint and several liability.
Let’s use the Samsung Note 7 as an example. If you were injured by the exploding battery in the smartphone, you would bring your product liability claim against both Samsung, and the battery manufacturer.
Pinpointing who you think is liable can be a complicated process, particularly if you are dealing with large corporate companies or foreign entities. The fault may lie with more obscure defendants, such as quality control technicians, third party contractors or outside consultants.
You may require the expert advice of specialist personal injury attorneys to help you single out plausible parties for the claim.
When you launch a product liability claim, you are expected to file supporting documents. You’ll have to produce an invoice or sales slip to prove where you’d purchased the product.
You’ll also have to supply medical records and receipts relating to the treatment of your injuries. Lastly, proof of the product defect core to your claim, has to be submitted.
If you are harmed by a defective product, you may be entitled to claim damages in respect of:
- current and future medical expenses
- current and future loss of wages
- pain and suffering
- legal costs related to pursuing compensation for damages suffered.