Product Liability FAQ

We answer a selection of the most frequently asked questions (FAQ) about product liability.

What is product liability?

Product liability refers to a supplier’s liability, or legal responsibility, towards a consumer for damage suffered or loss incurred as a result of a defective or unsafe product supplied.

Which law governs product liability in SA?

The Consumer Protection Act (CPA) of 2008 safeguards South African consumers from unsafe or defective goods.

The Act provides clear remedies for those affected by defective or dangerous goods that are produced either locally or imported.

What does strict liability mean?

Under the CPA, suppliers have what is termed strict liability for defective or unsafe products.

This means that in a product liability claim the onus is not on the consumer to prove that a supplier was negligent or directly responsible for a product being unsafe.

Instead, a claimant’s legal team must demonstrate that a product was faulty and the direct cause of injuries sustained.

What does the CPA say about product liability?

According to the CPA, the entire supply chain – manufacturers, importers, distributors and retailers – is required by law to ensure that a product is free of defects and safe for its intended use.

Producers are obliged to provide clear instructions for the safe handling of goods.

Also, producers must warn consumers of any risks or hazards associated with using their products that could result in serious harm.

Against whom is a claim for damages made?

Under South African law, designers, manufacturers, importers, distributors and retailers can all be held liable for damages caused by defective or hazardous products.

What damages can I claim for?

In South African courts, damages awarded are compensatory not punitive.

If you’re injured due to a defective or dangerous product, you may be able to claim damages for:

• past medical expenses
• future medical expenses and hospital costs
• past and future loss of earnings
• general damages for pain and suffering.

What must be proven in a product liability case?

The claimant doesn’t have to prove that the defendant was negligent.

To establish liability, the claimant’s team has to prove that harm was caused, wholly or partly, as a consequence of:

• the supply of an unsafe product
• a product failure, defect or hazard in the product
• inadequate instructions or warnings provided to the consumer pertaining to any hazard arising from, or associated with, the use of the product.

Where in South Africa is a product liability case decided?

A product liability case can be heard in a Magistrate’s Court, Regional Court or the High Court.

The location depends on the amount of damages claimed.

The court must:

• assess whether any harm has been proven and adequately mitigated
• determine the extent and monetary value of any damages, including economic loss
• apportion liability among persons who are found to be jointly and severally liable.

How much can I be awarded in damages?

In South Africa, the lower courts have a monetary jurisdiction up to R400,000.

The High Court has unlimited jurisdiction.

Why might my product liability claim fail?

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

• 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.

Is there a timeframe in which to bring a product liability case?

Yes. The CPA requires that a claim for damages must be made within three years of the alleged injuries or death.

Product manufacturers spend millions defending liability cases – is it worth going to trial?

Not all product liability claims go to trial.

In some cases, defendants settle before trial.

Cases can be long and costly, so at DSC Attorneys, we work on a no-win, no-fee basis.

This means there’s no legal fee for you unless we win the case.

Do I need to retain an attorney?

Product liability claims are complex and unique.

Global supply chains are involved in delivering a high proportion of the products South Africans buy.

An exhaustive investigation into the origin of a product may be required simply to identify the correct defendant for a product liability claim.

Product testing may be necessary to prove that a product failed to meet the required standards defined by the South African Bureau of Standards (SABS) and that this resulted in harm.

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

A lengthy pre-trial discovery process is often needed.

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