If you operate anywhere in a product supply chain (producer, importer, distributor, retailer, supplier, installer etc) be aware that your risk of being sued under the CPA (Consumer Protection Act) just increased.
First “No Fault”, now even wider liability
To recap, the CPA makes you liable for any form or level of damage to person or property resulting from defective or unsafe products.
Critically, there is no need to prove any form of negligence on your part – liability is now “no-fault” or “strict”. And whilst there are a few defences still open to you, they are limited.
Now a new and important High Court judgment (Halstead-Cleak v Eskom Holdings Ltd (26360/14)  ZAGPPHC 632) has established that your liability is not limited to the “consumer” of the product; you are liable also to “innocent bystanders” and the like. That’s a lot more risk.
On fire: An electrocuted cyclist sues Eskom
A cyclist had the misfortune to ride into a low-hanging live power line spanning a footpath.
Electrocuted so severely that his clothes caught fire, he was saved only by the quick thinking and actions of his companions, who were fortunately able to pull him free, extinguish the flames, and resuscitate him after he stopped breathing.
Severely injured, the cyclist sued Eskom for substantial damages under the CPA.
Are you liable only to “consumers” or to everyone?
Eskom admitted that it was responsible for the power line and that it was both the producer and distributor of the electricity. But it denied liability, relying on the fact that the cyclist was not in this case acting as a consumer or user of electricity, and arguing that the CPA protects only “consumers” of products, and no one else.
The Court however, having analysed the wording, spirit and purpose of the CPA, disagreed. It held that you need not be a “consumer in the contractual sense” to have a claim. A third party such as an innocent bystander would also be covered. The cyclist is therefore entitled to recover his proved damages from Eskom.
Manage your risk
Take legal advice on the extent of your exposure, have all your supply contracts, usage instructions and warnings checked, and beef up your quality control procedures.
Check that your product liability insurance covers you for CPA strict liability claims to innocent third parties as well as to consumers.
The full judgment in Halstead-Cleak v Eskom Holdings Ltd (26360/14)  ZAGPPHC 632 is available here.