Technology is infiltrating every area of our lives, and driving is no exception. As cars become smarter, it seems that we are getting closer to a driverless future that was imagined in the 80s and 90s. A number of modern vehicles have features that are aligned with a vision towards a driverless society, such as adaptive cruise control, lane centering steering and hand-free steering. The most advanced driving method can be described as so-called “attention-free” or “auto-pilot mode” driving. As with most innovations, the teething stages can be challenging. In April 2021, it was reported that an accident involving a driverless vehicle, took place in Texas, America. The outcome of investigations by authorities suggests that the passengers had activated the auto-pilot mode, whilst no-one was occupying the driver’s seat. Consequently, the two passengers in the vehicle, died on the scene after the car collided into a tree and caught fire. The critical question to be asked in such circumstances is how our law regulates potential liability in such circumstances, if at all.

This legal insight explores this question in the South African context by taking a closer look at a key provision in the Consumer Protection Act 68 of 2008 (“CPA” or “the Act”) that addresses product liability.

Section 61 of the Act – introductory remarks

Section 61 of the CPA provides for liability for damage caused by goods, commonly known as product liability. The section seeks to ensure that producers, importers, distributors and retailers are held liable in instances where any harm is caused as a result of—

• supplying unsafe goods;
• product failures, defects or hazards in goods; or
• providing inadequate restrictions or warnings to the consumer regarding potential hazards in relation to goods.

Section 61(5) of the Act indicates that the type of “harm” that falls within its ambit includes:

• Death or injury to a natural person;
• Illness of a natural person;
• Loss or physical damage to any property; or
• Any economic loss that results from the above instances.
• The nature of liability

To a certain extent, section 61 of the CPA is a far-reaching provision in that the liability it triggers is faultless. This means that it is not necessary prove that the relevant party in the supply chain was at fault, which may, in any event, be a challenging aspect to prove. The mere fact that the goods have caused harm as a result of the abovementioned reasons, means that there is potential liability to a producer, importer, distributor or retailer. It is notable that the liability in this section extends further up supply chain and is not restricted to the retailer, for instance. Where there is more than one party in the supply chain that may be held liable, section 61(3) of the Act indicates that the liability will be joint and severally.

For example, A purchases a driverless vehicle from B Motors Pty Ltd, a car dealership. B Motors Pty Ltd conducts quality clearance checks on all the vehicles that it buys from a key manufacturer, namely C Car Manufacturers CC. A is subsequently involved in a motor collision when his driverless vehicle crosses a red traffic light at a busy intersection and collides with a moving truck. As a result of the collision, A dies immediately. It then emerges that one of the vehicle’s traffic light censors were defective, despite that the vehicle was brand new and only one month old. In such an instance, B Motors Pty Ltd (as the retailer) and C Car Manufacturers CC (as the producer) may each be liable severally and jointly under section 61 of the Act. Given that the provision is faultless, it would not be necessary for the person that approaches the court to prove that either party had acted intentionally or negligently. The implication of their liability being joint and several is that either party (i.e. the retailer or the producer) may be pursued for the claim in terms of section 61. However, the party found to be liable may approach the other party to be compensated pro rata for making good the claim.

Exclusions from liability

In terms of section 61(4) of the Act, there are certain instances in which liability will not arise. This includes circumstances where the particular characteristic in the goods that results in the harm is: (i) completely attributable to compliance with any public regulation; (ii) did not exist at the time that the good was supplied; (iii) was wholly attributable to compliance with instructions provided by the supplier; (iv) where it is unreasonable to expect that the distributor or retailer would have discovered the unsafe characteristic; or (vi) where a period of three years has lapsed since the claim arose. These exclusions will protect those implicated from being held liable under section 61 of the CPA and will need to be determined on the facts of each case. Therefore, should an applicant wish to exercise a right under section 61, such person would need to ensure that the exclusions that are stated in section 61(4) of the Act are not applicable to the specific facts at hand.

Conclusion

As driverless cars enter the South African market, section 61 should be top of mind for those in the vehicle supply chain as a potential risk to the industry that needs to be mitigated. Should it happen that a pattern develops in terms of damage caused to consumers in advanced driverless vehicles, then it is possible that a product recall may ensue under section 60 of the Act. Importantly, sections 60 and 61 of the CPA apply to transactions concluded in South Africa, despite the fact that the transaction may ordinarily be excluded from the ambit of the CPA. As our law currently stands, there will, however, need to be a supplier-consumer contractual relationship in order for section 61 of the Act to apply, as was highlighted in Eskom v Halstead Cleak [2016] ZASCA 150. From a consumer perspective, the sections are welcome protective measures, particularly in light of the driverless direction the vehicle industry is taking.

Tshepiso Scott

Director