In a recent matter in the High Court in Pretoria, the court was required to interpret and apply section 61 of the Consumer Protection Act (CPA).
The case was the dispute in Halstead-Cleak v Eskom Holdings Ltd, in which Halstead-Cleak instituted a damages action against Eskom after coming into contact with a low hanging power line spanning a footpath. He sustained severe fullthickness electrical burns to his right forehead and burn wounds to his chest and legs. At the time of the incident, Halstead-Cleak was a cyclist enjoying a social ride in nature and Eskom was responsible for the line in question.
The initial aspect dealt with in the judgement was the specific question whether section 61 of the CPA was applicable to the facts. This section provides for so-called “strict liability” (ie liability even in the absence of negligence) on the side of the producer, importer, distributor or retailer of any goods, in certain circumstances. It determines that each of the producer, importer, distributor or retailer of a particular product is strictly liable for any harm caused where that product was unsafe, had a product failure, defect or hazard or was provided with inadequate instructions or warnings in relation to any hazard arising from or associated with the use of the product. Each of the producer, importer, distributor and retailer of the product is jointly and severally liable. As such, a person who suffers harm from a defective product can bring a claim against any person in the supply chain. A particular supplier such as a distributor who supplies unsafe product or a product with insufficient warnings may, however, escape liability if he can show that the product characteristic that made the product unsafe, the defect or the hazard, was not present at the time that he sold or otherwise supplied the goods in question or, in the case of a distributor or retailer of products who is not engaged in manufacturing or importing products, if it is unreasonable to have expected that distributor or retailer to have discovered a problem with the products, having regard to the role played by that person in marketing them. Therefore, although a person who claims damages due to the supply of an unsafe, defective or hazardous product is not required to prove negligence on the side of the manufacturer or other person in the supply chain in manufacturing or supplying the goods in question, the claimant will still have to prove, on the basis of section 61 of the CPA, the existence of a defect, unsafe characteristic or hazard in the product and will have to prove that this was the cause of the harm suffered.
The parties agreed beforehand that in the present matter only the aspect of the applicability of the CPA would be determined. Other factors, such as possible contributory negligence on the side of HalsteadCleak, would stand over for later determination, if necessary. Also, were it found that section 61 of the CPA was not applicable, the delictual liability of Eskom will then be investigated separately.
ESKOM HELD BOUND UNDER STRICT LIABILITY CLAUSE
The cycling activity was far removed from any agreement entered into between a consumer and supplier, as contemplated in the Consumer Protection Act. This formed the basis of Eskom’s argument. Notwithstanding, the court held that the fact that Eskom was a ‘producer’ and a ‘retailer’ in respect of electricity supplied, to consumers in general, did not mean that a ‘consumer’ had to be the injured party in this instance. He noted that the spirit and purpose of the Act that requires redress for ‘any person’, means that in a scenario such as the present, Eskom should be held liable under section 61 of the CPA. In other words, even though the injured party had no contractual relationship with the defendant and had no intention to make use of the defendant’s ‘goods’, he qualifies for consumer protection as provided in the Act.
CONSEQUENCE OF WIDE INTERPRETATION
The court’s wide interpretation of the meaning of ‘consumer’ in the CPA, enlarges the protection provided to the public in terms of the Act. Conversely, the risk of liability for producers, importers, distributors and retailers has been materially increased. It is indicated that the judgement is subject to an appeal. The findings of the High Court will hence not be the last word on this issue and we eagerly await the further clarification which a court of appeal may bring about.