What the Consumer Protection Act says about liability for damage

It is important for consumers to know what the Consumer Protection Act says about liability for damages because it gives them a way to get recourse.

Section 61 of the Act deals with the liability of the producer, importer, distributor or retailer of hazardous, unsafe or defective goods that caused the death, injury or illness of any person or loss of or physical damage to any moveable or immovable property.

These parties can also be held responsible for damage or harm caused by not giving consumers adequate instructions or warnings regarding the use of the goods. While consumers do not have to prove that the producer, importer, distributor or retailer was at fault, they can only claim for loss which results from the types of harm mentioned above.

This section applies to all users of goods even if the Act does not apply to the sale of the goods. This means, for example, that if the goods were bought on credit or sold to a big company that is not classed as a ‘consumer’, there will still be a valid claim under this section.

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When suppliers could have no liability for damage

Suppliers can raise these defences to show that they should not be responsible for paying for the loss the consumer suffered:

• The unsafe product characteristic, failure, defect or hazard that caused harm existed only because of compliance with another law.
• The unsafe product characteristic, failure, defect or hazard did not exist when it was supplied, such as if the goods were safe when they left the manufacturer but the retailer did not store the goods correctly and this caused the goods to become unsafe. Then the manufacturer will not be responsible for the harm, but the retailer will be.
• It resulted from compliance with instructions from the person who supplied the goods to the next person in the supply chain. For example, a manufacturer made a mistake in the instructions for storage of the goods. The retailer followed the instructions exactly and this resulted in harm. The retailer will not be responsible, but the manufacturer will be.

It is unreasonable to expect the distributor or retailer to be aware of the unsafe product characteristic, failure, defect or hazard, given their role in supplying the goods. For example, if a retailer sells goods in sealed boxes, they cannot be expected to open the boxes to check if there is a dangerous defect.

Section 61 also allows for a group of consumers who were all harmed by the same goods to claim together. This is known as a class action for damages and this means there is a much greater risk for suppliers that there will be claims.