Notwithstanding the coming into operation of the Consumer Protection Act on 31 March 2011, judgments relying on the Act are few and far between. The High Court judgment in Halstead-Cleak, Derek Anthony v Eskom Holdings Limited is probably the first judgment dealing with product liability under the Act.
A cyclist came into contact with a low-hanging live power line. There was no debate that electricity is “goods” as defined in the context of section 61 of the Act that imposes a no-fault product liability regime.
What was in dispute was whether the cyclist plaintiff who stood in no contractual relationship with the defendant, and who was not at the time making use of the electricity, was nevertheless entitled to recover damages on a no-fault basis, as contemplated in section 61.
The core of the debate was whether section 61 provides protection and benefits to bystanders. The court, on analysing the wording of the section and definitions, held that the plaintiff was entitled to that protection.
That interpretation is far reaching and not necessarily correct, having regard to the overall structure of the Act and its intention to protect and benefit consumers as defined.
The judgment may be the subject of an appeal. The views of an appeal court would be welcomed. If this court’s interpretation is correct, liability of producers, importers, distributors and retailers of products is significantly increased, as is the exposure of product liability insurers.
The judgment is well worth a careful read and consideration by underwriters of product liability insurance. A product liability insurer’s exposure may be limited by excluding any liability of insureds to bystanders under the Act.