Product Liability Claims in South Africa

If you’ve suffered losses or been injured because of a faulty or unsafe product, you may be able to claim for damages. This is because under South African common law, the businesses that provide consumers with products have a legal responsibility for ensuring that those products are safe.

The law makes manufacturers and even sometimes retailers liable for damages in the following cases:

…a product contains a defect which leads to damage such as to property (patrimonial loss), the death of a person, bodily harm, pain and suffering, shock, discomfort, deformity, loss of amenities or shortened life expectation”.  [Source]


image by StockMonkeys

Why make a product liability claim?

If you’ve been injured by a defective or unsafe product, a successful product liability claim could mean that you’ll be compensated for medical expenses associated with your injuries, as well as for any income you lose due to having to take time off work. You may also be awarded damages for general pain and suffering.

Also bear in mind that product liability claims play an important role in our modern, profit-driven societies. They teach businesses that they have to take consumers’ safety seriously. It’s possible that your claim could keep someone else from being injured, potentially even more seriously than you were.

Criteria for a successful product liability claim

For a product liability claim to succeed, five conditions must be met:

  1. A voluntary act or omission act must have been made, whether intentional or through negligence, that is susceptible to will control (in other words, reasonable steps could have been taken to prevent the product from causing harm).
  2. That act or omission must have been unlawful.
  3. The defendant must be blameworthy for the damage or harm caused.
  4. There must have been a causal link between the act (or omission) and the damages and/or harm caused to the plaintiff.
  5. Patrimonial damages and/or harm must have been suffered by the plaintiff.

What makes product liability claims complicated

Determining who’s liable

Product liability claims can be very complex. This is partly because it’s not always easy to determine who is liable for a product defect or problem.

In general, product designers and manufacturers are liable if a product causes injury or losses because of inherent defects that render that product unsafe for use, or because essential information about the product and how to use it was lacking or misleading.

However, many of today’s products pass through long, complex production and supply chains that span multiple countries. It can be extremely difficult to pinpoint which of multiple companies is ultimately responsible for a defect.

Under certain conditions, merchants may be held liable for injuries or losses caused by the products they sell. The law specifies that even if a merchant seller isn’t aware of product defects, this person may be liable for damages if he or she “…publicly professes to have attributes of skill and expert knowledge in relation to the kind of goods sold.

In practice, merchants these days are typically denied the opportunity to see, feel, smell or taste the products that pass through their hands.

The burden of proof

As the party who makes a product liability claim, you’ll generally bear the burden of proving negligence on the part of the product manufacturer or retailer. Often it’s difficult to do this. Especially when a product itself is complex, you may not have the necessary knowledge to assess the product or to establish the exact nature and cause of a defect.

The international nature of modern production

A final complication is that often products are either fully or partly manufactured overseas. This means not just that the responsible parties are far away, but that different sets of laws may apply. Laws governing product liability may differ substantially from one country to another.

Get a qualified attorney

Because of the potential complexity of personal liability cases, it’s important to get advice and guidance from an expert attorney who has extensive experience in handling product liability cases.

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