Product liability in an age of development risks : should South Africa reconsider adopting a development risk defence?

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Authors

Tennant, Sarah-lynn
Van Heerden, C.M. (Corlia)

Journal Title

Journal ISSN

Volume Title

Publisher

Cambridge University Press

Abstract

To provide protection against harm caused by defective, unsafe products and to promote product safety, the law of product liability has developed as a specialized area of the law of delict (tort). The vexing question is, who should bear such liability? This contribution interrogates the notorious EU development risk defence, which exonerates manufacturers that meet certain stringent requirements for undiscoverable development risks in products that consequently inflict harm on consumers. In particular, it considers the election by South Africa, which recently adopted a “strict” product liability regime with the introduction of the Consumer Protection Act 2008, not to adopt such a defence. The purpose of this contribution is to consider the nature and scope of the development risk defence as contained in article 7(e) of the European Union (EU) Product Liability Directive and to determine whether it was prudent for South Africa to steer clear of incorporating a similar defence in its new statutory product liability regime.

Description

Keywords

Defective products, Developmental risk, Developmental risk defence, Hybrid regime, Product liability, Strict liability, SDG-12: Responsible consumption and production, SDG-16: Peace, justice and strong institutions

Sustainable Development Goals

SDG-12:Responsible consumption and production
SDG-16:Peace,justice and strong institutions

Citation

Tennant, S.-L. & Van Heerden, C. Product Liability in an Age of Development Risks: Should South Africa Reconsider Adopting a Development Risk Defence? Journal of African Law. 2024; 68(3): 359-377. doi:10.1017/S0021855323000360.