Select aspects relating to defenses to strict product liability as introduced by the Consumer Protection Act of 68 of 2008

Abstract

The Consumer Protection Act 68 of 2008 has extended consumer protection to South African Consumers in various areas, notably also by introducing a strict product liability regime . Quite a number of authors have already investigated the parameters of the product liability regime introduced by section 61 of the Act with emphasis on the absence of a requirement of negligence and how this aspect has opened up access to redress for consumers harmed by defective products. Although this dissertation provides an overview of the new product liability regime introduced by the Consumer Protection Act it has a very specific focus, namely to analyse the defences available to the supply chain against product liability claims. The reason for doing so is twofold: in the first instance it is necessary to appreciate that the product liability regime introduced by the Act, although strict, is not absolute. Hence the provision made in section 61 for a number of defences that may be raised by the supply chain. Second, it is submitted that unless a balanced approach to the issue of product liability is taken, consumers will suffer because a product liability regime that does not provide for any defences to product liability claims may stifle development and innovation to the detriment of consumers. The dissertation thus investigates the closed list of defences introduced by section 61(4) of the Act and compares them with the statutory defences available under the EU Product Liability Directive in order to draw conclusions regarding their content and adequacy within the realm of modern product liability law.