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[2003] ZASCA 30
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Wagener v Pharmacare Ltd, Cuttings v Pharmacare Ltd (32/2002, 7001/2000) [2003] ZASCA 30; [2003] 2 All SA 167 (SCA); 2003 (4) SA 285 (SCA); 2003 (7) BCLR 710 (SCA) (28 March 2003)
IN THE SUPREME COURT OF APPEAL
OF SOUTH AFRICA
REPORTABLE
CASE NO 32/2002
In the matter between
ANNA ELIZABETH JACOMINA WAGENER
Appellant
and
PHARMACARE LTD
Respondent
CASE NO 7001/2000
and in the matter between:
RITA ELIZABETH CUTTINGS
Appellant
and
PHARMACARE LTD
Respondent
________________________________________________________________________
CORAM: HOWIE P, MARAIS, CONRADIE, CLOETE JJA et
JONES AJA
________________________________________________________________________
Date Heard:
7 March 2003
Delivered:
28 March 2003
Summary: Product liability: whether manufacturer
strictly liable in delict for
harm caused by defective manufacture.
________________________________________________________________________
J U D G M E N T
________________________________________________________________________
HOWIE P
HOWIE P
[1] This matter concerns the extent to which a
manufacturer can be strictly liable in delict for unintended harm
caused by defective
manufacture of a product where there is no
contractual privity between the manufacturer and the injured person.
[2] The appellant in the first appeal underwent shoulder
surgery at a private hospital conducted by a trust. The surgical
procedure
involved administration of a local anaesthetic called
Regibloc Injection ('Regibloc') which was manufactured and marketed
by the
respondent company. As an aftermath of the surgery the
appellant was left with necrosis of the tissues and nerves underlying
the
site of the operation, and paralysis of the right arm.
[3] In an action for damages for personal
injury which the appellant instituted in the Cape Town High Court,
she sued the respondent
and the trustees of the trust. She alleged,
among other things, that her injury and its
sequelae
were
caused by Regibloc. A virtually identical suit was brought by the
appellant in the second appeal, another alleged victim of
Regibloc.
The two actions were consolidated. For present purposes what is
decided in respect of the first appeal applies to the other,
and is
confined to the respective claims against the respondent. I shall
simply refer, for convenience, to the parties in the first
appeal.
There are frequent references in the record to the respondent as
manufacturer, seller and/or distributor but it is sufficient,
in the
judgment, to refer to manufacture because it is the respondent's role
as manufacturer that is crucial.
[4] As was to be expected, one of the causes of action
the appellant relied on was that the Regibloc administered to her was
defective
as a result of negligent manufacture by the respondent.
However that was only pleaded in the alternative. Her main claim was
based
simply on the allegation that, contrary to the respondent's
duty as manufacturer (obviously meaning legal duty in the delictual
sense)
the Regibloc administered was unsafe for use as a local
anaesthetic because it resulted in the necrosis and paralysis
referred to.
[5] The respondent excepted to the main claim as
disclosing no cause of action in that it failed to allege fault in
the manufacture
of the Regibloc in question and purported to contend
that as manufacturer the respondent was subject to strict liability
for the
alleged injurious consequences.
[6] The exception was argued before Fourie AJ. He upheld
it but granted leave to appeal.
[7] In deciding the issues raised by the
appeal it must be accepted, as regards the facts, that the Regibloc
in question was manufactured
by the respondent, that it was defective
when it left the respondent's control, that it was administered in
accordance with the respondent's
accompanying instructions, that it
was its defective condition which caused the alleged harm and that
such harm was reasonably foreseeable.
It must also be accepted, as
far as the law is concerned, indeed it was not disputed, firstly,
that the respondent, as manufacturer,
although under no contractual
obligation to the appellant, was under a legal duty in delictual law
to avoid reasonably foreseeable
harm resulting from defectively
manufactured Regibloc being administered to the first appellant and,
secondly, that that duty was
breached. In the situation pleaded
there would therefore clearly have been unlawful conduct on the part
of the respondent:
Ciba-Geigy (Pty) Ltd v Lushof Farms (Pty) Ltd
1
.
The essential enquiry is whether liability attaches even if the
breach occurred without fault on the respondent's part.
[8] At the outset it is appropriate to say
that the subject of product liability has over recent years been
informed and illuminated
in South Africa by legal textbooks as well
as academic and journal writings which have all appreciably assisted
in shaping and determining
the debate on the present issue
2
.
In this Court that debate centred on rival submissions which may
briefly be summarised as follows.
[9] For the appellants it was argued that
for a variety of reasons the common law remedy by which to protect
and enforce the appellants'
constitutional right to bodily
integrity
3
,
namely, the Aquilian action for damages, was inadequate to achieve
those ends. In terms of the Constitution, so it was said, the
Court
was therefore obliged, in weighing and balancing the conflicting
interests of consumers and manufacturers, to develop the common
law
by having recourse to the spirit, purport and objects of the Bill of
Rights in order to 'fashion a remedy' that did achieve the
requisite
protection
4
.
South African law, the argument went on, had already attached strict
liability for consequential damages arising out of defective
merchandise to a merchant seller who professes expert knowledge in
relation to such goods (
Kroonstad Westelike Boere Ko-operatiewe
Vereniging, Bpk v Botha
5
â I shall call it the '
Kroonstad
case') and it required no more than a decision of legal policy,
and a modest shift of principle, to extend such liability to a
manufacturer
in the circumstances of the present matter. It was
pointed out, in addition, that in a more recent decision of this
Court the question
had been posed whether the law in this country in
the field of product liability might not in any event have been
'perceived to have
lagged behind'
6
.
It was emphasised that there are instances of strict liability which
are well known to the law of delict, for example, the pauperien
action, the
actio de effusis vel dejectis
and the action based
on unlawful deprivation of personal freedom. Apart from these
survivors from the past there are, the submission
continued,
well-founded present day reasons of expediency, commercial equity and
public protection which have influenced the developers
of the law in
comparable jurisdictions to impose strict liability on manufacturers
in situations like the one in this case. In
elaboration of this
submission much reliance was placed on the legal position in the
United States of America and in particular the
provisions of section
402A of the American Law Institute's
Restatement of the Law
(Second) Torts 2d
7
and cases such as
Greenman v Yuba Power Products Inc
8
.
[10] One of the major reasons, according to
the appellants' argument, why proof of fault should not be a
requirement in a case such
as this is that fault is most often
extremely difficult to prove. A plaintiff has no knowledge of, or
access to, the manufacturing
process either to determine its workings
generally or, more particularly, to establish negligence in relation
to the making of the
item or substance which has apparently caused
the injury complained of. And, contrary to what some writers
suggest, it was urged
that it is insufficient to overcome the problem
that the fact of the injury, consequent upon use of the product as
prescribed or
directed, brings the maxim
res ipsa loquitur
into play and casts on the defendant a duty to lead evidence or risk
having judgment given against it. The submission is that resort
to
the maxim is but a hypocritical ruse to justify (unwarranted)
adherence to the fault requirement.
[11] Reverting to the
Kroonstad
case, it was contended that it was anomalous that where the injured
party was the buyer, and the seller was not even the manufacturer,
strict liability applied, whereas in the absence of a contractual
relationship between the parties fault had to be proved. Accordingly,
so the appellant's argument concluded, the time was now ripe to
impose strict liability and it was the courts that were in the better
position than the legislature to do so because the imposition of such
liability was best implemented incrementally on a case by case
basis
depending on the specific circumstances of each.
[12] I should add that when asked whether
extension of the principle in the
Kroonstad
case meant that
the proposed new liability was to be founded on breach of some
implied contractual warranty or in delict, counsel
for the appellant
said that such categorisation was unnecessary and obstructive â all
that was required was a policy decision to
cater for what was an
obvious weakness in an injured consumer's legal armoury.
[13] For the respondent it was argued that
the
Kroonstad
case was of no assistance because it concerned a
warranty imposed by the law of sale. The issue here, so it was said,
arose squarely
and solely within the field of delictual law and
imposition of the liability for which the appellant contended would
bring about
a fundamental change in that law which would be contrary
to the principle of
stare decisis
. In addition it was
submitted that it would be illogical and unworkable to impose strict
liability on a case by case basis: why impose
it on the manufacturer
of a medical product but not on the manufacturers of all products
made for public consumption? What considerations
ought to prompt such
imposition and, more importantly, what principles? Furthermore, was
the new liability to be the subject of a
new delict or an exception
grafted on to Aquilian principles?
[14] As regards the problem of proving
fault, counsel for the respondent pointed out that even if strict
liability were imposed a
plaintiff would still have to prove that the
product concerned was defective when it left the manufacturer. If
that were indeed established
then application of
res ipsa loquitur
would suffice to place the manufacturer on its defence and, in
effect, compel an exculpatory explanation, if one existed. In the
circumstances it was submitted that proving fault was really no more
difficult than proving defectiveness.
[15] As regards the appellant's reliance on
other instances of strict liability, it was pointed out that these
have either a long
history or a policy-based reason for existence, in
both cases peculiar to themselves, and not free from jurisprudential
controversy
in any event
9
.
Any analogy based on them would therefore be false.
[16] Accepting
that, notionally, a case for strict liability could be made out quite
apart from, and in addition to Aquilian liability,
the respondent
contended that it should be for the legislature, not the court, to
impose it. A variety of arguments were offered
in support of this
thesis. I shall refer to them where necessary in what follows.
[17] In evaluating the parties' competing
submissions one's starting point is that the right which the
appellant seeks to protect
and enforce is constitutionally
entrenched. This is therefore one of the factors to be borne in mind
when having regard to the injunction
to shape the common law in
accordance with the Constitution's spirit, purport and objects. The
next consideration is that this same
right has also always existed at
common law. In that law its unintended infringement, where (among
other consequences) bodily harm
results, gives rise to a specific
remedy, namely, the Aquilian action. To succeed in the action, proof
of fault in the form of negligence
has always been necessary. That
has been stated in decisions of this Court from
Cape Town
Municipality v Paine
10
to
Ciba-Geigy
11
,
the latter itself a case involving defective manufacture. Most of the
cases pre-date the Constitution but that of
Ciba-Geigy
was
decided after the Constitution came into operation. The position is,
therefore, that the right concerned enjoys the same importance
now as
it always did and because of the operation of
stare decisis
its enforcement must, subject to the consideration to which I next
come, be governed by the same principles as applied before. The
binding force of precedent is as effective now as it always was
12
.
Indeed, counsel for the appellant did not seek to label any of the
relevant decisions on fault as wrongly decided or to question
the
applicability of the principle of
stare decisis.
What counsel
did contend was that the remedy to enforce the right, in requiring
proof of fault, operated unduly harshly in the case
of defective
manufacture of a medical product and so the common law development
enjoined by the Constitution necessitated the suggested
need for
strict liability in such an instance.
[18] The
first enquiry to which this submission gives rise is whether the
Aquilian remedy is indeed inadequate, not in the sense of
inadequacy
as to the damages recoverable but as to the pre-requisite of proof of
fault to unlock such recovery.
[19] As counsel for the respondent
correctly pointed out, even if strict liability applied, a plaintiff
would still have to prove
not only that the product was defective
when used but defective when it left the manufacturer's control. In
the case of a medical
product, for example, that burden would in any
event probably require expert evidence involving, no doubt, some
complexities of scientific
analysis. It might also be difficult for a
plaintiff to acquire for examination the remaining portions of the
administered product
or unused samples from the same consignment as
that from which the administered product came. Moreover there would
be the same need
to prove factual and legal causation as exists when
liability is fault-based. A further point that needs to be made is
that even
if a manufacturer were to show that a proved latent defect
could not have been detected by any reasonable examination, the
inference
may nevertheless be justified that somebody involved in the
manufacturing process must have been at fault
13
.
[20] Naturally if there were strict
liability it would not be open to a manufacturer to rely on proof
that it had taken all reasonable
care but then one must ask what real
difference that is likely to make. Once there is
prima facie
proof, direct or circumstantial, that the product was defective at
the various times material to the action, it is virtually inevitable
that
res ipsa loquitur
will apply and require an answer from
the manufacturer. True, the maxim only comes into play if the
plaintiff's evidence is such
that it can be said that the event (in
this case, for example, the necrosis) would not ordinarily occur
without there having been
negligent manufacture (involving, perhaps,
some scientific explanation in addition to the mere fact of the
injury) but it is perfectly
conceivable that the courts may develop
reasons for being readier in some cases of alleged defective
manufacture to draw the necessary
prima facie
inference of
negligence where expert evidence is extremely difficult for the
plaintiff to acquire, and perhaps even more so where
administration
of a substance made to be applied to the human body has apparently
had an effect quite contrary to the manufacturer's
stated aim. If the
law requires development to cater for this particular type of suit,
then there would be the need for what is but
an incremental shift and
not a complete rejection of long standing principle. The question of
that type and degree of development
does not arise in this appeal,
however, bearing in mind what the issue is that has been raised by
the exception. It may arise if,
and when, the litigation proceeds
on the alternative claim.
[21] The same considerations pertain to the
possibility that it might well be thought right in future for reasons
of policy, practice
and fairness between the parties to place the
onus on the manufacturer to disprove negligence
14
.
Once again that is something for another day. The point is that the
applicability of
res ipsa loquitur
â perhaps even in an
extended way â and the possibility of a reverse onus, are factors
which militate against the conclusion
that the Aquilian remedy is
insufficient in the sense mentioned earlier to achieve protection of
the claimant's right in this kind
of litigation.
[22] It is nevertheless necessary to say
that the submission advanced on the appellant's behalf that the
principle in the
Kroonstad
case should be extended to
encompass strict product liability, is untenable. That matter was
concerned with a warranty imposed on
a seller by the law of sale
which can excluded by contract. Contract and delict, being quite
separate branches of the law, have their
own principles, remedies and
defences. One cannot, because of the absence of contractual privity
between the injured party and the
manufacturer, simply graft warranty
liability on to a situation patently governed by the law of delict.
[23] That brings me to the appellant's
reliance on United States case law and the American Restatement. It
is quite so that the American
courts found it remarkably easy to
jettison fault but the fundamental reason appears to me to be given
by one of that country's leading
writers on the law of torts who, so
it happens, was also the Reporter for the second edition of the
Restatement. In his Handbook
of the Law of Torts
15
,
Prosser explains that in its inception a seller's warranty, although
subsequently for some purposes regarded as a term of the contract
of
sale, originally gave rise to liability in tort and never lost
entirely its tort character. In time the tort aspects of warranty
called for a tort, rather than a contract, rule in various respects
and eventually served to extend warranties to the benefit of
the
ultimate consumer even without privity of contract between the latter
and the producer
16
.
Hence cases such as
Greenman
in which one finds the emphatic
statement that the manufacturer's liability is governed by the law of
strict liability in tort
17
.
Be that as it may, 'warranty' in South African law was an importation
from English law in which a warranty was in all respects a
matter of
contract. In its country of adoption it remains so
18
.
Reliance on the law of the United States in this connection would
consequently be unjustifiable. It is significant that counsel
for the
appellants were unable to refer to any other country in which strict
liability is imposed other than by statute as is the
case in the
major industrialised countries
19
.
(In the United States there has been lobbying for a return to fault -
based liability but this could be manufacturer - motivated
and
prompted by the results of jury trials and awards and not by
shortcomings in the substantive law
20
.)
[24] As to the fact that instances of
strict liability in the law of delict do exist, this is attributable
to the special policy considerations
that apply to those cases
21
.
Their existence does not advance the case for the appellants.
[25] For
the reasons discussed I do not consider that the case for strict
liability based on the suggested inadequacy of the Aquilian
remedy
has been demonstrated.
[26] Finally, there is the argument that,
for largely commercial rather than forensic reasons, strict liability
ought to be imposed.
McQuoid-Mason tabulates a substantial number of
reasons in support of this point of view
22
but for present purposes it is unnecessary to examine and evaluate
the factors for and against. The issue that does require
consideration
is whether, assuming the argument to be sound,
imposition is for the courts to effect on a case by case basis or for
the legislature
to regulate by appropriately detailed legislation
after due parliamentary process and investigation.
[27] One is
sensitive to the criticism expressed by Prosser that to say that only
the legislature should make changes is to echo 'the
cry invariably
raised against anything new whatever in the law'
23
.
Nevertheless, what needs to be done is to assess what the new
development entails and how best to implement it.
[28] Counsel
for the respondent urged that this Court could only impose strict
liability if it considered that this was what, in developing
the
common law, s 8(3) of the Constitution compelled; but that if the
Court did so hold, the legislature would be hamstrung by such
conclusion even if the democratic parliamentary process in due course
delivered up the conclusion that only certain manufacturers
or
certain instances of manufacture should be subject to strict
liability. This is illustrative of the sort of problem that could
indeed arise if the courts were to alter the law in the respect
proposed by the appellants rather than to leave it to Parliament.
It
is difficult to understand how the courts could logically, fairly or
in principle confine the imposition in this way, whether
one looks at
the matter from the standpoint of the claimant or that of the
manufacturer. Why should only the victims of defectively
made
medicines have the remedy or, conversely, why should their producers
be the only manufacturers strictly liable?
[29] What I find significant about all the
arguments in favour of strict liability is that virtually without
exception they would
hold good were imposition to be by the
legislature. They do not begin to get to grips with the question
which forum it should be.
One finds in Neethling, Potgieter and
Visser
24
the statement that '(u)ltimately, products liability ought to be
based on liability without fault'. The authors then, in support,
quote from the article by JC van der Walt
25
who in turn provides reasons why there should be strict liability but
does not say why its imposition should be judicially achieved.
[30] Mention is sometimes made of the
common law as having the flexibility which allows sound incremental
development as society's
circumstances change. That such flexibility
exists is indeed so and it is best illustrated by the judgments of
this Court in recent
years dealing with unlawfulness
26
.
The emphasis must be on incremental development, however. Flexibility
does not necessarily entail the abolition of a long-standing
requirement of principle or, on the other hand, the creation of what
would, in effect, be an entirely new delict. Efforts to achieve
either might have to be made in compliance with the Constitution were
a situation to arise in respect of which there was no remedy
at all
in existence or a patently inadequate one, and the dictates of the
Constitution led to the need for change but, for reasons
already
stated, that is not the situation we have before us.
[31] One of the difficulties which could
arise were the courts to impose strict liability is this. A decision
in favour of the appellant
would not merely have prospective effect.
As in the
Bogoshi
case, a finding that strict liability
attaches to the respondent would in effect, declare what the law on
this point has always been
even if it has never before been so
stated. Accordingly, a manufacturer could now, by reason of such
declaration, become strictly
liable for a product defectively made
some years ago in respect of which, absent proof of negligence, it
stood in no jeopardy of
an adverse judgment. There is no procedural
mechanism available by which to avoid that unjust result if the
imposition of strict
liability were to be by judgment. Were that
imposition to be legislative, the relevant statute would not operate
retrospectively
on a matter of substantive law.
[32] It is
not without significance that in the other parts of the world of
which mention has already been made, the imposition has
been by way
of legislation. (The American Restatement, authoritative though it is
in the United States, is not legislation, nor is
it a compendium of
judicial pronouncements.) No doubt it was recognised in the countries
concerned that, as the respondent argued,
the subject of product
liability is boundless as regards the possible structures and codes
that can be put in place and because the
investigation and debate
which is part and parcel of the democratic process are the best
measures by which to canvass the opinions
of all interested parties
and, eventually, to produce a comprehensive set of principles, rules
and procedures, all in force from
one and the same date. By contrast,
the result sought by the appellant would merely pertain to one type
of product and only to manufacturers
of such products. The fate of
manufacturers of other products or of other articles, the fate of
manufacturers of ingredients (as
opposed to the manufacturers of
entire medicines) and of components, would have to depend on the
uncertain and unpredictable frequency
with which future disputes
spawn cases and those cases spawn judgments.
[33] It should also be noted, as
respondent's counsel pointed out, that the manufacture of medicines
has, in any event, been the subject
of recent extensive statutory
regulation without strict liability having been imposed
27
[34] Understandably,
the appellant was not concerned to ask for a finding that all
manufacture should fall within the ambit of the
judgment it sought.
However, the proponents of strict liability would expect, it seems,
that the Court's pronouncement should indeed
be as wide as that.
Other manufacturers, of course, have not been heard.
[35] To
illustrate the dilemma involved in the function of trying to
'legislate' judicially in this complex field (whether in this
or
other cases) regard may be had to some of the questions which
necessarily arise and which, if that function is to be effectively
and satisfactorily performed, must convincingly be answered. A few
follow:
1. What
products should be included (or perhaps it is easier to specify what
should be excluded) when it comes to determining the
extent of the
liability?
2. Is
a manufacturer to include X, the maker of a component that is part of
the whole article manufactured by Y; and which is liable
if the
component is defective?
3. Does
defect mean defect in the making process only or, in the case of a
designed article, also a defect of design? Should it include
the
failure, adequately or at all, to warn of possible harmful results?
4. Should
the liability be confined to products intended for marketing without
inspection or extend even to cases where the manufacturer
does, or is
legally obliged to, exercise strict quality control?
5. What
relevance should the packaging have - should liability, for example,
be limited to cases where the packaging precludes intermediate
examination or extend to cases where the manufacturer stipulates that
a right such as a guarantee would be forfeited if intermediate
examination were made?
6. Is
a product defective if innocuous used on its own but which causes
damage when used in combination with another's product?
7. What defences should be available?
Contributory negligence easily comes to mind, as in the case, for
example, of the pauperien
action. But there are defences in the
statutory schemes applicable overseas which are not just taken over
from common law. There
is the state of the art (or development risk)
defence that the defect was scientifically undiscoverable. This
pertains especially
to pharmaceuticals. There are also the various
statutory defences provided for in the United Kingdom Act
28
which have been considered appropriate and necessary. One may ask how
all these 'non-common law' defences are to be introduced and
developed, especially without evidence as to their impact,
practicality and fairness of operation.
8. Should
the damages recoverable be exactly the same as in the case of the
Aquilian claim or should they be limited, as in some jurisdictions,
by excluding pure economic loss or by limiting them to personal
injury?
[36] This list is by no means intended to
raise all the possible questions that require answer. For a succinct
and helpful discussion,
with comparative references to the respective
United Kingdom, United States and European positions see Clark,
Product Liability
29
.
[37] That
the questions enumerated cannot be answered on the basis of what has
arisen and been debated in this case is due not to
the fault of the
parties or their representatives. It is because single instances of
litigation cannot possibly provide the opportunity
for the breadth
and depth of investigation, analysis and determination that is
necessary to produce, for use across the manufacturing
industry, a
cohesive and effective structure by which to impose strict liability.
The incremental approach suggested by the appellant
is not
incremental at all but a radical departure from accepted law, and it
would immediately raise more questions than it answers.
[38] To sum up: the appellant's remedy is
confined to the Aquilian action which is presently adequate to
protect her right to bodily
integrity, both as it is and given the
opportunity for incremental development of the approach to
res
ipsa loquitur
and to the incidence of the onus. If strict
liability is to be imposed it is the legislature that must do it.
[39] It
follows that the appeal cannot succeed. It is dismissed, with costs,
including the costs of two counsel.
_____________________
CT HOWIE
PRESIDENT
SUPREME COURT OF APPEAL
CONCURRED
:
MARAIS JA
CONRADIE JA
CLOETE JA
JONES AJA
1
2002 (2) SA 447
(SCA)
2
The following list is not exhaustive. In the main, see: JC van der
Walt 'Die deliktuele aanspreeklikheid van die vervaardiger vir
skade
berokken deur middel van sy defekte produk'
(1972) 35 THRHR 244
and
'
Risiko Aanspreeklikheid Uit Onregmatige Daad
' (doctoral
thesis 1974); FJ de Jager '
Die Deliktuele Aanspreeklikheid van
die Vervaardiger Teenoor die Verbruiker vir Skade Veroorsaak deur
middel van 'n Defekte Produk'
(doctoral thesis 1977) and '
Die
grondslae van produkte-aanspreeklikheid
ex delicto
in die
Suid-Afrikaanse reg'
(1978) 41 THRHR 354
; Neethling, Potgieter
and Visser, '
The Law of Delict'
, 4th ed, 322-6; D
McQuoid-Mason,
Consumer Law in South Africa;
S van der Merwe
en FJ de Jager
'Products Liability: A Recent Unreported Case'
(1992) 109 SALJ 83
; Jean Davids '
The Protection of Consumers'
(1966) 83 SALJ 87
; J Neethling and JM Potgieter '
Die Hoogste
Hof van Appèl laat die deur oop vir strikte
vervaardigersaanspreeklikheid'
,
2002-3 TSAR 582
(a commentary on
the Ciba-Geigy case).
3
See s 12(2) of the Constitution (The Constitution of the Republic of
South Africa Act 108 of 1996).
4
See ss 8(3) and 39(2) of the Constitution.
5
1964 (3) SA 561
(AD)
6
Langeberg Voedsel Bpk v Sarculum Boerdery Bpk
[1995] ZASCA 148
;
1996 (2) SA 565
(AD) at 572 H-I
7
Ch 14, 347.
8
59 Cal 2nd 57
9
(f eg
Loriza Brahman en 'n Ander v Dippenaar
2002 (2) SA 477
(SCA) at 484C-D
10
1923 AD 207
at 216-7
11
At 471 para [68]
12
See
Ex Parte Minister of Safety and Security and Others
:
In
re
S v Walters and Another
,
[2002] ZACC 6
;
2002 (4) SA 613
(CC) paras
[60-1] at 646 D-H;
Afrox Healthcare Bpk v Strydom,
2002 (6)
SA 21
(SCA) para [26] at 38 G-H.
13
Cf
Grant v Australian Knitting Mills and Others
[1936] AC 85
(PC) at 101
14
Cf
National Media and Others v Bogoshi
1998 (4) SA 1196
(SCA)
at 1215B-1218E.
15
4th ed 634-6
16
See, too, in this regard, Restatement, Torts 2d 355 (para m).
17
at 63
18
RH Christie,
The Law of Contract,
4th ed 178 ff
19
In the United Kingdom, the Consumer Protection Act 1987: in Europe,
the European Product Liability Directive1985; in Japan, Product
Liability Law 85 of 1994; in Australia, the Trade Practices Act,
1974, the relevant part of which was introduced in 1992.
20
Alistair M Clark,
Product Liability
, 216.
21
See
National Media and Others v Bogoshi
at 1209B-C
22
Consumer Law in South Africa
at 108-9
23
Prosser '
Assault on the Citadel
(Strict Liability to the
Consumer)'
(1960) 69 Yale Law Journal 1099
at 1122
24
The work is cited in footnote 2, at 326
25
It is in
(1972) THRHR 244
at 243
26
From
Minister van Polisie v Ewels
1975 (3) SA 590
(A), and
the many later cases which refer to it, to
Minister of Safety and
Security v Van Duivenboden
2002 (6) SA 1
(SCA)
27
See the Medicines and Related Substances Control Act 101 of 1965
which was repealed by the South African Medicines and Medical
Devices Regulatory Authority Act 132 of 1998, although the latter is
not yet in force.
28
See s 4
29
Referred to in footnote 19