To be held "strictly liable", what exactly does this mean? The legal definition is "liability incurred for causing damage to life, limb or property by a hazardous activity or defective product, without having to prove that the defendant was negligent or directly at fault". Now for the follow up question, how is this relevant in the world of product liability?

In 2003, the Supreme Court of Appeal dealt with the matter of Wagener v Pharmacare Ltd, Cuttings v Pharmacare Ltd 2003 (2) All SA 167 (SCA), an appeal from the Cape Town High Court. This case dealt with the extent to which a manufacturer can be strictly liable in delict for unintended harm caused by defective manufacture of a product where there is no contractual privity between the manufacturer and the injured person. In this case, the appellants underwent a surgery, which required the administration of a Regibloc injection, a local anaesthetic that was manufactured and marketed by the respondent.

As a result of the surgery the appellant's right arm became paralysed. It was alleged that the Regibloc administered was defective as a result of negligent manufacture by the defendant. The appellants argued that fault should not be a requirement in this matter as a plaintiff has no knowledge of, or access to, the manufacturing process, either to determine its workings generally, or to establish negligence in relation to the making of the item or substance which has apparently caused the injury complained of. The appellants therefore sought to hold the respondent strictly liable. The court found that the appellants' remedy was confined to the Aquilian Action, where proof of fault is a requirement and that if strict liability is to be imposed, it was the legislature that had to do it. The appeal was thus dismissed.

Section 61 of the Consumer Protection Act 68 of 2008 deals with liability for damage caused by goods. In terms of this section, the producer, importer, distributor or retailer of any goods is liable for any harm caused as a consequence of supplying any unsafe goods, a product failure, defect or hazard in goods, or inadequate instructions or warnings, irrespective of whether the harm resulted from any negligence on the part of the producer, importer, distributor or retailer. What this means is that the consumer need only prove a causal link between the unsafe product characteristic, failure, defect or hazard and the harm suffered. Further, the consumer can now sue the manufacturer, even though there is no contractual privity between the manufacturer and the consumer.

However, in terms of section 61(4) there are four defences that may be relied on. Even though strict liability diminishes the proof of negligence, section 61(4)(c) provides that a distributor or retailer can escape liability, if they can prove that it is unreasonable to expect that they could have discovered the unsafe product characteristic, failure, defect or hazard, having regard to that person's role in marketing the goods to consumers. By introducing this criteria of "reasonableness" retailers or distributers are escaping strict liability by proving the apparent lack of fault on their part. What the Act has essentially done is reverse the onus of proof in terms of the fault aspect of the Aquilian Action.

Although manufacturers or importers are still at risk of being strictly liable, they can rely on the defences as stipulated in the Act, ie that the defect, failure or hazard did not exist in the goods at the time it was supplied, that the unsafe product characteristic, failure, defect or hazard that results in harm is wholly attributable to compliance with any public regulation, or that the claimant's claim has prescribed. This would quite obviously lead to costly investigations for both the supplier and the consumer.

For example, in the Wagener case, the manufacturer of the drug could well have been found liable if he were not able to prove his defence. If he relied on the defence that the defect did not exist in the drug at the time it was supplied, this would have required him to show that the defect did not exist in the drug at the time supplied. As one can see, this would have required him to re-test the drug and to seek the advice of relevant experts. This would then have led to the claimant having to disprove his investigations and expert reports. A task that will undoubtedly lead to expenses that may well exceed what the claim is worth.

The litigation process is long and costly. In the past the bulk of these costs in respect of product liability matters pertained to proving liability on the part of the producer and this often acted as a deterrent to consumers. Although, on the face of it, the provisions of the Consumer Protection Act appears to be detrimental to producers, it has essentially resulted in a reversal of the onus of proof in respect of proving or disproving liability. "Strictly" speaking, all the Act has done is levelled the playing field.

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