Product liability not restricted to “consumers” only

In the case of Halstead-Cleak, Derek Anthony vs Eskom Holdings Limited (26360/2014) [2015] VAT ZAGPPHC, Eskom was held liable for the damages suffered by Mr Halstead-Cleak as a result of the injuries he sustained after coming into contact with a with a low hanging live power line. Halstead- Cleak was riding his bicycle on a footpath when he inadvertently came into contact with a low hanging live power line and sustained severe full thickness electrical burns on his forehead, chest, arms and thighs.

The issue that had to be determined was whether or not Eskom Holdings could be held strictly liable in terms of section 61 of the Consumer Protection Act 68 of 2008 (CPA).

Section 61 of the CPA holds the producer, distributor or retailer liable of any harm caused wholly or partially as a consequence of:

  • the supplying of unsafe goods;
  • a product failure, defect or hazards in any goods; or
  • inadequate instructions or warnings provided to the consumer pertaining to any hazards arising from or associated with the use of any goods.

The producer, importer, distributor, or retailer will be held liable in irrespective of whether the harm resulted from any negligence on their part.

Eskom Holdings argued that the “…CPA is about consumerism and the protection of the consumers and that had the Plaintiff suffered the electrical burns in the course of utilizing the supply of the electricity to his home or otherwise in the course of his use of electricity then the CPA might have applied.”  In other words since the Plaintiff was not the user (or consumer in the strict sense of the word) the CPA cannot apply to him in this case.

The court held that the CPA was applicable in this instance because the CPA provides protection to, and redress for any person in a number of its provisions, with other words, the CPA provisions are not only restricted to consumers. Section 60 and 61 are even applicable to transactions that are exempted from the provisions of the CPA, which is inductive of its wider application, thus affording redress to persons that would not have enjoyed the advantage of other provisions of the CPA and rendering liable those producers, suppliers, promoters and the like who would otherwise not be liable in terms of any other provisions of the CPA.

The court further referred to section 61(5) and stated that this section makes it clear that liability arises not only in respect of consumers as defined in the CPA or consumers in the general sense but to any natural person as well. Thus Halstead-Cleak need not be a consumer in the contractual sense of the word, as contended by Eskom Holdings, in order for Eskom Holdings to be liable to him.

When looking at the definition of a consumer as provided for in section 1 of the CPA it could be viewed that the application of this act does not extend to a bystander who is not a consumer as defined, such as Halstead-Cleak who suffered electrical burns as a result of coming into contact with a low hanging live power line while riding his bicycle, and not as a consumer of goods, the electricity supplied by Eskom Holdings in the sense of utilizing the supply of electricity to his home or otherwise in the course of his use of the electricity. One may question the correctness of the judgement.

However, if the definition of a consumer in the CPA is carefully examined, more specifically subsection (c) which states that a consumer can be “…if the context so requires or permits, a user of those particular goods or receipt or beneficiary of those particular services irrespective of whether that user, receipt or beneficiary was a party to a transaction concerning the supply of those particular goods or services.”,  it can be said the situation such as the one in the Halstead-Cleak-case, may be covered by the CPA.

In addition section 61 (5) indicates the harm which a person may be held liable for, which includes the death of, or injury to any natural person and any illness of any natural person. Thus liability can also arise not only in respect of a consumer, but also to any natural person as confirmed by the court.

The judgement as it stands has far reaching implications: a producer, importer, distributor or retailer, as case may be, may now be held liable, not only for harm suffered by consumers of goods or services supplied by them, but also to bystanders. This drastically increases the liability of roll players in the supply chain and makes product liability insurers very nervous.

by Kgolofelo Makhuthudisa
kgolofelo@dyason.co.za