Establishing a Product Liability Claim

Exploding smartphones, self-combusting SUVs and defective airbags have all recently featured in the news.

Despite modern awareness of the damage that safety incidents can do to companies’ reputations, it’s not uncommon for people to be seriously injured by products, ranging from infant slings and baby cribs to toys, personal devices, large appliances like washing machines and car tyres.

In South Africa, the Consumer Protection Act (CPA) entitles consumers to claim damages for injuries caused by unsafe or faulty products, subject to the legal requirements outlined in the Act.

What kinds of compensation can you claim?

If you’ve been injured by a defective or dangerous product, you may be entitled to claim compensation for:

• current and future medical expenses
• current and future loss of earnings
• general damages for pain and suffering
• legal costs relating to your product liability claim.

What the CPA says about product liability in the case of a defective product

According to the CPA, the entire supply chain involved in delivering a product to consumers is legally obligated to ensure that the product is free of defects and safe for its intended use.

Producers are also obliged to provide clear instructions for the safe handling of goods, and to warn consumers of any risks or hazards associated with using their products that could result in serious harm.

Under the CPA, producers have strict liability for defective or unsafe merchandise.

What does strict liability mean?

In defective product cases, it’s unnecessary to prove that a particular agent was negligent or directly responsible for a product being unsafe – something that it’s increasingly difficult to do, with complex, global supply chains involved in delivering a high proportion of the products South Africans buy.

Instead, it’s sufficient to demonstrate that a product was faulty and that it was the direct cause of the injuries sustained.

How can a product liability claim fail?

A product liability claim can fail if the defendant can prove one or more of the following circumstances:

• there was no flaw in the product’s design, manufacture and marketing
• the injuries were a direct result of the misuse or abuse of the product
• the claimant knew the product was defective and hazardous but chose to use it nonetheless
• the claimant ignored the user instructions or warning label accompanying the product.

Why consult a personal injury attorney?

Although the CPA clearly outlines the rights of consumers, product liability claims are complex.

It isn’t necessarily straightforward to identify the defendant or defendants in a case involving a complex supply chain, with designers, manufacturers, importers, distributors, marketers and retailers at different locations and subject to different jurisdictions.

A lengthy pre-trial discovery process is often needed. For example, proving a product is defective may require independent product testing and a subpoena for obtaining design blueprints.

Also, the success of product liability claims often rests on expert testimony from specialists in a particular field of product design and manufacture.

All these factors make it essential to have expert legal assistance.