Product Liability 2009 - Arnold & Porter LLP

South Africa
286
Cliffe Dekker Hofmeyr Inc. South Africa
2 Causation
2.1 Who has the burden of proving fault/defect and damage?
The claimant must prove that the product is defective or faulty and,
as a result thereof, caused the damage.
2.2 What test is applied for proof of causation? Is it enough
for the claimant to show that the defendant wrongly
exposed the claimant to an increased risk of a type of
injury known to be associated with the product, even if it
cannot be proved by the claimant that the injury would
not have arisen without such exposure?
South African Delictual Law distinguishes between factual and
legal causation. According to the Appellate Division, the “but for”
test applies with regard to factual causation. Different from factual
causation is legal causation, which deals with the remoteness of
damages and therefore no liability.
A claimant will therefore have to prove that the increased risk to
which he/she was exposed to, without any warning about the
existence of the risk, caused the harm. The increased risk must be
causally connected with the injury suffered. Without proof of such
nexus, the claimant will be unsuccessful.
2.3 What is the legal position if it cannot be established which
of several possible producers manufactured the defective
product? Does any form of market-share liability apply?
It should be ruled by the court that the claimant did not prove his
case and the claim should be dismissed. The doctrine of
contributory negligence applies in South Africa and may play a role
to distribute liability between various parties.
2.4 Does a failure to warn give rise to liability and, if so, in
what circumstances? What information, advice and
warnings are taken into account: only information provided
directly to the injured party, or also information supplied to
an intermediary in the chain of supply between the
manufacturer and consumer? Does it make any difference
to the answer if the product can only be obtained through
the intermediary who owes a separate obligation to assess
the suitability of the product for the particular consumer,
e.g. a surgeon using a temporary or permanent medical
device, a doctor prescribing a medicine or a pharmacist
recommending a medicine? Is there any principle of
“learned intermediary” under your law pursuant to which
the supply of information to the learned intermediary
discharges the duty owed by the manufacturer to the
ultimate consumer to make available appropriate product
information?
Failure to warn about inherent or hidden dangers in a product does
give rise to liability for the manufacturer. Warnings on a label or
instructions in a brochure will be necessary in certain circumstances
where the possibility of damage is foreseeable. The manufacturer
should know the product it manufactured and must therefore be able
to foresee the likelihood of certain events which may cause damage,
as long as such events are not too remote.
The manufacturer should inform and warn the ultimate consumer in
the event of the product manufactured reaching the consumer in its
final form. In such event it should not be necessary for the
intermediary to warn further. One would expect the manufacturer not
to supply information to an intermediary which is of a warning nature
and not also to warn the end user of such possible danger, especially
if the product is in its final format and already packed and sealed to be
sold on to a customer. In the event of an intermediary receiving
information from a manufacturer and the intermediary is of the view
that the consumer should be warned about an additional danger
contained in the information received from the manufacturer, then the
intermediary should either not supply the product further on in the
chain or it should ensure somehow that the consumer becomes aware
of such information about the product. The intermediary cannot just
ignore information at its disposal which should be made available to
the next entity in the chain of supply.
3 Defences and Estoppel
3.1 What defences, if any, are available?
In terms of Section 61 of the Consumer Protection Bill, only certain
defences will be available to the producer, importer, distributor or
retailer. The defences will be:
That the unsafe product characteristic, failure, defect, or
hazard that resulted in the harm, is only attributable to
compliance with any public regulation.
That the alleged unsafe product characteristic, failure, defect
or hazard did not exist in the goods at the time that he was
supplied.
That it is unreasonable to expect the distributor or retailer to
have discovered the unsafe product characteristic, failure,
defect or hazard.
That the claim for damages is brought more than three years
after the damage occurred.
Prior to the promulgation of the Consumer Protection Bill, the
position is:
The product is not defective and was not used as intended or
recommended or prescribed.
Conclusive state of the art prior tests were done.
Absence of negligence.
Contributory negligence.
Consumer contracted out of the right to sue.
3.2 Is there a state of the art/development risk defence? Is
there a defence if the fault/defect in the product was not
discoverable given the state of scientific and technical
knowledge at the time of supply? If there is such a
defence, is it for the claimant to prove that the fault/defect
was discoverable or is it for the manufacturer to prove that
it was not?
The Consumer Protection Bill introduces the state of the art
defence. At present the position is that if the defendant pleads that
the defect in the product was not discoverable given the state of
scientific and technical knowledge, then the defendant will bear the
onus to prove such allegation. The plaintiff will merely have to
prove that the product is defective.
3.3 Is it a defence for the manufacturer to show that he
complied with regulatory and/or statutory requirements
relating to the development, manufacture, licensing,
marketing and supply of the product?
The Consumer Protection Bill introduces this defence. However, at
present such defence does not exist. It will only be a defence in
criminal proceedings. In civil proceedings compliance with
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