Eva Smith (Attorney) @ Lucid Living
Remember the controversy surrounding the Toyota Fortuner? Consumers complained about the vehicle’s poor and even hazardous performance on dirt/gravel terrain. Several accounts of the vehicles lack of prowess, ended with the vehicle on its roof. Consumers were adamant that the vehicle was defective.
Toyota’s PR engine switched on to abate the concern. In the end, Toyota advised that the vehicle was not defective and recommended that a different tyre be fitted. No compensation claims were reported and we can safely assume that the entire matter was muffled by good old fashion PR.
Had the Consumer Protection Act (“the Act”) been in force at the time, the Toyota Fortuner saga may have had a very different ending.
Section 61 of the Act allows a consumer who suffers harm caused by any unsafe goods, product failure or defect or even from inadequate instructions or warnings on packaging, to sue almost any person involved in the manufacture, distribution and sale of the product to the consumer, irrespective of whether that person was negligent.
The consumer will not need to prove that the producer, importer, distributor or retailer was negligent, as is the case at present in our law. The consumer must only show that a person in the supply chain supplied the defective product and that the product was the cause of the harm suffered by the consumer.
Under section 61, the harm for which the supplier may be held liable includes:
Death or injury;
Loss or physical damage to im/movable property; and
Any economic loss.
Consider the example of using plumbing services. It is often the case when you have a problem with the plumbing and engage the services of a plumber, that he also supplies you with the necessary parts to fix the problem. Soon after the repair the problem recurs and the leaking pipes cause extensive water damage to your home.
Under the current law (i.e. no strict liability), you can sue only the plumber but the plumber could evade liability on the basis that the damage was as a result of a defect in the product (i.e. the pipes in this example) and due to no fault (negligence and intentional) of his own .
In terms of the Act however, you will be able to attribute fault to the supplier (in this case the plumber), the retailer (who the plumber bought the defective pipes from) and the manufacturer (who manufactured the defective pipes) and you therefore will be able to claim damages for the resultant damage from anyone of the aforementioned.
The introduction of similar laws in other countries, have had a positive effect for consumers. Between 2004 and 2007, overall product recalls in the UK rose by 125% as a result of new legislation that required manufacturers to inform authorities and consumers of any potential risk from their products.
It would have been interesting to see how the Toyota PR machinery would have fared in this environment, with the Fortuner incident.
Section 61 gives consumers enhanced rights and recourse to hold companies (through the supply chain) accountable for the harm caused by defective products. This will invariably result in better quality goods and a more transparent market place.