Injured Consumers Put Law to the Test
The Weekend Argus
7 January 2015
Hardware giant Builders’ Warehouse is being challenged under the new Consumer Protection Act.
Two Consumer Protection Act test cases lodged against a hardware giant could keep South African retailers on their toes over the stock , and open the floodgates for similar lawsuits.
Builders Warehouse faces claims totalling about R18 million which were lodged over the holiday season in the North and South Gauteng High Court by a Joburg commercial pilot and a Pretoria IT technician.
Both cases involve injuries claimed to have been sustained as a result of allegedly defective ladders.
Tzvi Brivik of Malcolm Lyons & Brivik , which represents the two men, said a favourable decision would create a precedent other consumers could use in future similar claims.
“Currently there is no case law where a product liability claim such as this has been decided based on the Consumer Protection Act. Previously, a plaintiff would have to claim against the manufacturer of the defective product, basing the claim on delictual law. This means that the defect must be proved by the Plaintiff. The Consumer Protection Act now changes that. Except for limited exceptions, which are set out in the act , the onus now lies on the distributor, producer or importer to show the product was safe for use. This is a substantial shift in our law and assists consumers in campaigning for safe products marketed for profit,” he said.
Builders Warehouse has not yet filed responding papers but has indicated that both actions will be defended.
It said : “ Builders Warehouse sells in excess of 50 000 units per annum. We can confirm that we have recently received two liability claims from a Johannesburg – based lawyer with respect to two incidents that occurred over a 10 month period in 2014. A motion to defend both actions has been filed.”
According to the court papers, South African Airways pilot Andrew Doig hasn’t been able to return to work since he injured his spine in June.
He fell when the 3.8 m Isaacson telepscopic ladder he bought from Builders Warehouse in Fourways broke while he was descending it.
“It is expected that , as a result of his injuries and their sequelae , in the future will encounter difficulty with the physical demands of flying international routes and within five years will be limited to domestic flights with a 20 percent reduction in his annual earnings and in his international allowances, “ the papers state.
In addition , it is expected that Doig will be compelled to retire early and he will not be able to earn an income as a freelance pilot.
Doig instituted the action against Massbuild ( which trades as Builders Warehouse ) as well as the importer or producer of the ladder , Isaacson Ladders.
He is claiming R14.3m in damages as well as $182 400.00
In the second action , Riaan Beeslaar of Pretoria severely injured his ankle after a 3.7m aluminium multipurpose folding ladder bought at Builders Warehouse in Gesina suddenly collapsed.
According to court papers , Beeslaar will not be able to continue working as an IT field technician because he will not be able to cope with the demands of the job, due to his injury.
He is claiming R1.6m in damages.
Doig and Beeslaar allege that their injuries were caused by product failure and Builders Warehouse’s alleged supply of unsafe goods.
Beeslaar also alleges that instructions on any hazard while using the ladder were in adequate.
The men are relying on Section 61 of the Consumer Protection Act, which details with consumers’ rights to fair value, good quality and safety.
Section 61 specifically deals with the liability of retailers and distributors when someone is injured or killed through the supply of defective or hazardous goods.
Brivik said the Consumer Protection Act, was applicable to most transactions, unless it was specifically excluded.
“Although published in 2008, it has not made its way into the product liability litigation yet. More consumers need to be aware of their rights in terms of this far reaching legislation. The act introduces the right to fair value , good quality and to safety which is paramount for consumers.
“It defines a defect in the product as a material imperfection that a consumer would not find unacceptable. It defines a failure of a product as an inability of the product to perform in its intended manner and it defines an unsafe product as a product that poses a risk to personal injury.”