Manufacturers, importers, distributors and suppliers should beware of the new Consumer Protection Act (CPA) as it imposes liabilitywithout fault and strict liability, says June Marks Attorneys MD June Marks.

She mentions a case where, prior to the CPA’s implementation, the last word on the matter was in the case of Wagner v Pharmacare Limited/Cuttings v Pharma-care Limited, which stated that a consumer who had suffered damages or injury as a result of a defective product needed to prove that the manufacturer was negligent, that is, that the manufacturer had not failed to exercise the standard of care of the reasonable man or that the damage was caused intentionally, placing a heavy burden on the consumer.

However, the CPA now holds a producer, importer, distributor or supplier of goods liable for any loss or damage resulting from supplying unsafe goods, a product failure or defect or from inadequate instructions or warnings provided to the consumer. As such, a consumer can now be compensated for damages caused by a design defect, a manufacturing defect or inadequate warning. The damages cover death, illness, injury, loss or physical damage to property, as well as loss which results from the damage caused.

Although the consumer need not show any negligence, there are still defences to the action, such as that the defect or hazard was caused by compliance with a public regulation, or compliance with the instructions of a supplier to the person, or that it is unreasonable to expect the distributor or retailer to have discovered the unsafe product characteristic, failure, defect or hazard, given that entity’s role in marketing the goods to consumers. Prescription still applies, Marks notes.

The liability is joint and several, which means that a consumer can institute action for recovery of damages against any or all the members of the supply chain who supplied the defective product.

The new liability regime will force manufacturers and suppliers to take preventive measures, including adequate warnings on product labels and instructions to reduce the chances of being held liable under the Act, and mitigate any claims which may arise. Suppliers will be more aware that they should make purchases from trusted manufacturers and pro- ducers who are committed to compliance to avoid liability, and importers will be extremely cautious of where they source their products.

The Act states that defects and hazards will be dealt with more quickly and in a more transparent manner and that all parties in the supply chain must now ensure adequate insurance.

Only time will tell whether the costs of these additional protective measures will be built into the price and, ultimately, be borne by consumers, Marks concludes.