People are often told by DIY advocates how easy the next project is and where to find even the most weird and wonderful ingredients, tools or chemicals. Subsequently these days hardware stores stock a wide variety of what seems to be, at face value, consumer friendly household cleaners that will solve all unsightly or foul smelling problems in a few simple steps you can do yourself, such as drain cleaners … until these easy steps literally blow up in your face and you need to urgently find out exactly what chemicals this product contain. Only to be faced with a complete lack of contact details or any useful information on the product’s label. In cases of chemical burns time is of the essence and may even a few minutes’ delay in treatment result in permanent scarring and damages. The importance of being able to immediately determine the chemical compilation of a product and to contact the manufacturer can thus not be emphasised enough.
Previously in terms of the common law one could only institute a claim against the manufacturer, retailer or distributor of the product if there was a contractual relationship between you and them which agreement provided for such a claim, and if one could prove negligence on the part of the supplier or manufacturer.
Luckily this situation was changed by the enactment of the Consumer Protection Act 68 of 2008 (CPA) on 1 April 2011. Section 61 of the CPA now provides that the producer, importer, distributor or retailer of goods may be held liable (jointly and severally) for any harm or damages caused wholly or partly as a result of:
- the supply of unsafe goods;
- a product failure;
- defect or hazard in the goods;
- inadequate instructions or warnings provided to the consumer pertaining to any risk associated with the use of the goods regardless of whether the harm resulted from any negligence on the part of the producer, importer, distributor or retailer.
Section 53(1)(c) of the CPA defines “hazardous” as a characteristic that has been identified as, or declared to be, a hazard in terms of any other law or a substance that presents a significant risk of personal injury to any person or damages to property when such goods are utilised. Whether or not goods poses a significant risk will require a value judgement by the court having regard to various factors.
Further to the above “unsafe” in terms of Section 53(1)(3) of the CPA means that due to a characteristic, failure, hazard or defect, particular goods present an extreme risk of personal injury or property damage to the consumer or to other persons. Although Section 61(1)(c) of the CPA provides for liability based on “information defects” such as inadequate warning or usage instructions, this section provide no further guidance in terms of how the courts must assess the adequacy of warning labels. Under these circumstances the court will need to resort to the application of a reasonability test.
The adequacy of instructions and warnings accompanying a product were considered in the Australian case of ACCC v Glendale Chemical Products 40 IPR 619 (1998) (Austl. Fed. Ct.) in which a Plaintiff sustained chemical burns while using a drain cleaner (caustic soda). The caustic soda reacted with the warm water within the shower drain, burning the Plaintiff’s face and eyes. The court considered whether the instructions and warnings accompanying the product adequately warned consumers of the risk of injury if the product comes into contact with hot water in a drain. The court held that the manufacturer was well aware of this risk attendant to pouring the caustic soda down a drain containing hot water and that consumers are entitled to be warned of risks in respect of use to which goods “might reasonably be expected to be put”. Therefore the manufacturer ought to have included a specific warning to this effect. Applying this approach in the South African context, it is arguable that the use to which goods “might reasonably be expected to be put” should also take into account the potential misuse of products due to vulnerable consumers with low technical knowledge of the specific product, misunderstanding or misinterpreting product instructions or warnings.
Considering the above as well as the uniqueness and complexity of product liability claims in general it is clear that an in-depth investigation into the origins of the product and the supply chain will be necessary to accurately identify the defendants for a product liability claim and that official product testing will also be necessary to prove the required standards that a product must meet as set out by the South African Bureau of Standards (SABS).
Accordingly please keep an example of the product, including a clear legible label and monster of the content or substance, for analyses and investigation when faced with the unfortunate event of sustaining physical injuries as a result of using any product.
By Marietjie Botes