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Legal Talk

Legal Talk

Author: Fawzia Khan
Date: 2017-09-14

The concept of strict liability

In terms of the common law, there had to be a contractual relationship between a consumer and the supplier or producer of the goods or services. In addition, if you wanted to pursue a damages claim, it was necessary to prove fault on the path of the supplier.

However since the Consumer Protection Act became law, the concept of strict liability was introduced into law, taking precedence over the common law. Good news for consumers as it meant that there was now no longer any need to prove fault on the part of the supplier. Prior to the enactment of the CPA, we only had the common law, which governed product liability.

Whilst cycling along a footpath, a cyclist came into contact with a low hanging live power line, which caused him to suffer severe burns. The cyclist then sued Eskom (being the supplier of services) for damages and used the provisions of strict liability as set out in the CPA to support his claim. Eskom said that the reason why there was a low hanging live power line was due to the theft of stay rods thus which made it unsafe.

The Pretoria High Court found in favour of the cyclist and said that in terms the strict liability provisions of the CPA, Eskom was 100 per cent liable for the cyclist’s injuries. Eskom appealed the High Court judgment to the Supreme Court of Appeal. Eskom denied that the incident arose as a result of the supply of unsafe goods or a product failure, defect or hazard in any goods or inadequate instruction or warnings.

The Supreme Court of Appeal said that the CPA was designed to offer protection to the vulnerable consumer as well as to promote social and economic welfare of the consumers. The court agreed with Eskom that in the circumstances surrounding the injuries sustained at the time, that the cyclist was not ‘a consumer’.

The court found that Eskom did not enter into any transaction with the cyclist hence Eskom was not to be considered as supplier or producer of electricity in the ordinary course of Eskom’s business, nor was the cyclist using the electricity at the time nor was he a recipient or beneficiary of such electricity. The cyclist’s earlier victory against Eskom was thus set aside.

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