2018-03-14 08:08:22 -


8 months ago

LISTERIOSIS & YOUR RIGHTS: Type of Harm Consumers can Claim Damages and more......

Amid the ongoing Listeriosis outbreak, the Consumer Goods and Services Ombud (CGSO) has released a new guide aimed at helping consumers deal with food-poisoning and other contaminated products in South Africa.

In the statement released on Thursday (8 March), Magauta Mphahlele the acting ombudsman, said that the CGSO welcomes the commitment by suppliers to voluntarily refund customers, if consumers return the identified product to any of their branches – even if they do not have a receipt.

"Because the return of the identified products is being managed under a formal product recall by the NCC, the CGSO does not expect to receive a flood of complaints, however some of the suppliers have reported to the CGSO that they are receiving an increased number of calls,"she said.

The Consumer Protection Act:

Mphahlele said that the Consumer Protection Act (CPA) is intended to make it easier for consumers to claim against producers or importers, distributors or retailers of any goods, for harm caused by the supply of unsafe goods or product failure including for damages arising from food poisoning.

"Under section 61 of the CPA, claims for damages are allowed irrespective of whether there was any negligence on the part of the supplier or manufacturer.

"The harm against which consumers are protected may arise from a product failure, defect or hazard or inadequate instructions or warnings regarding any hazard arising from or associated with the use of any goods.

"It is sufficient to show that the damages were suffered only or partly because of these shortcomings,"she said.

The type of harm for which a consumer can claim damages for include:

  1. The death of, or injury to, any natural person;
  2. An illness of any natural person;
  3. Any loss of, or physical damage to, any property, irrespective of whether it is movable or immovable; and
  4. Any economic loss that results from any of the types of harm listed above.

Mphahlele clarified that economic loss means indirect financial losses that might result from one of the first three types of harm, such as loss of income, hospital bills, loss of financial support resulting from the death of a family member etc.

The claim for damages must be brought within three years of the death or injury of a person or the latest date on which a person suffered any economic loss.

"Although consumers no longer have to prove negligence to recover damages, it is still necessary for them to prove that it was the tainted food sold to them by the outlet that caused them to get ill,"said Mphahlele.

"Therefore, it is necessary for consumers to collect as much evidence as possible by approaching a medical facility where the relevant tests can be performed to confirm that the illness is directly linked to the food they ate,"she said.

Where do I lodge a Complaint or the claim for damages?

The CPA does not specifically state where a consumer may lodge a claim for damages for such harm.

However, section 61(6) refers to the courts' power to determine whether any harm claim has been proven, the courts' power to assess the extent of the harm and to apportion liability among persons found to be jointly and severally liable.

It is therefore arguable that such a claim must be made to either the Magistrates' Court or to the High Court.

"Irrespective of the above, the CGSO has mediated disputes between consumers and suppliers relating to spoiled food or illness arising from consuming food bought at a restaurant or a take-away place. This means that consumers can lodge a complaint relating to food poisoning with the CGSO,"Mphahlele said.

In many instances suppliers provided replacements or refunds where the products did not cause any illness.

Where illness arose, suppliers provided additional compensation, despite the consumer not supplying proof that their illness is directly linked to the product consumed, nor the supplier admitting liability.

However, Mphahlele cautioned that the CGSO is not an investigative body and can only assist parties to resolve the dispute amicably.

"Where the CGSO fails to resolve the dispute, the consumer can approach the National Consumer Commission or proceed to Court where a claim for damages is involved,"she said.