Meet Kate, her son Charlie ingested beads from a toy she gave him for his first birthday, yet the product was clearly marked 6 – 12 months.
Does Kate have a claim?
Section 61 of the Consumer Protection Act (CPA) provides that the producer, importer, distributor or retailer of any goods 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 pertaining to any hazard arising from or associated with the use of the product.
Therefore, Kate will have a claim if she can prove that Charlie’s injury was the result of one of those conditions.
What can Kate claim for?
If liability is proven pertaining to anyone in the product supply chain – a claim for damages arises.
Kate may claim for Charlie’s past and future medical expenses and general damages (pain and suffering and loss of amenities of life). Depending on the severity and permanency of the injury she may also have a claim for Charlie’s future loss of income.
What type of information will Simpsons Attorneys require from her?
Kate will be required to bring her identity document as well as Charlie’s birth certificate.
Kate will need to:
• give a full account of the brand of the toy;
• state where it was purchased from (along with a receipt, if available);
• state when it was purchased;
• describe the condition of the toy at the time of the incident; and
• ideally , bring the toy, together with photos or the ingested portion of the toy (if available), for inspection
Kate will need to provide a statement explaining the circumstances leading up to the incident, such as how the toy broke and how Charlie came to ingest the product. She will also be required to provide details of Charlie’s medical information such as the hospitals and medical practitioners involved in Charlie’s treatment and his hospital folder number. Charlie’s sustained injuries should also be detailed, including the period he spent in and the prognosis of his injury.
It is also advisable to provide proof of medical expenses incurred.
What are the next steps?
The Attorneys will first request Charlie’s medical records/clinical notes. Once acquired, said medical records will be sent to an expert medical practitioner for an opinion on the matter. For Kate’s claim to succeed it will be necessary for a medical professional to show that the injuries sustained by Charlie were as a direct result of the ingestion of the bead.
It may also be necessary to obtain an opinion from an expert regarding whether the toy had an existent defect, whether it was unsafe or had an existent hazard which was the cause of the harm suffered.
If the opinions confirm that the case has merit then the litigation process may proceed.
What are the problems that could delay the case or affect its outcome?
As each product liability claim is unique, each claim needs to procced according to its own merits. An investigation as to the origin of a product and of its supply chain is necessary to determine who should be held liable. According to the CPA 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.
Liability may be escaped by a particular supplier where it can be shown that the defect or the hazard was not present at the time that the product was sold or, if it is unreasonable to have expected a distributor or retailer to have discovered a problem with the products, having regard to the role played by that person in marketing them.
Depending on the circumstances of the case it may be necessary to conduct product testing to prove that a product failed to meet the required standards defined by the South African Bureau of Standards (SABS).
Additionally, litigation is often delayed by the slow court process and the lengthy period of time it takes to be allocated a court date.
Do these sort of scenarios happen often?
Product liability claims happen less often than other personal injury claims, nevertheless their consequences can be dire and require expert legal knowledge.
What does the law say about Product Liability and what happens if companies don’t adhere to the law?
Since the 2008 introduction of the Consumer Protection Act, consumers no longer have to prove negligence on the part of the supplier of a product that has caused harm.
If companies do not adhere to the law they may be held liable for the death or injury of any natural person, an illness of any person, any loss or damage to physical property and any economic loss resultant from the harm caused.
