What can I do if a product injured me?

A gas bottle regulator fails and starts a fire. A child's toy breaks into pieces small enough to choke on. A kettle's handle detaches while full. A medicine is dispensed without a warning about an interaction.

Before 2011 a person injured by any of those had a hard claim. They had to identify who had been careless, and prove it, against a manufacturer who held all the information about how the product was designed and made. Most such claims were never brought.

The Consumer Protection Act 68 of 2008 changed the position, and section 61 is the provision that did it.

No need to prove negligence

Section 61 imposes liability on the producer, importer, distributor and retailer of goods for harm caused by:

• supplying unsafe goods
• a product failure, defect or hazard in the goods
• inadequate instructions or warnings provided to the consumer about any hazard arising from or associated with the use of the goods

And it does so irrespective of whether the supplier was negligent.

That is the whole shift. You no longer have to prove that a factory cut a corner, that a designer failed to test, or that a retailer should have inspected. You have to prove that the goods were unsafe or defective and that this caused your harm.

Who you can claim from

Liability under section 61 is joint and several across the supply chain: producer, importer, distributor and retailer.

Practically, that means you can sue the shop that sold it to you for the entire loss. You do not have to identify the factory, work out which entity imported it, or bring proceedings against a company in another country. The parties in the chain can sort out their contributions among themselves afterwards.

This matters enormously for an ordinary claimant. The retailer is local, identifiable, insured and served easily. The manufacturer may be none of those things.

What you still have to prove

Strict liability is not automatic liability, and this is where these claims are actually won and lost.

The defect or unsafe characteristic. You must establish that something about the goods was defective, unsafe or hazardous, or that the instructions or warnings were inadequate. That usually means expert evidence about the product.

The harm. Death, injury, illness, physical damage to property, or economic loss flowing from those.

Causation. That the defect caused the harm rather than misuse, ordinary wear, or an unrelated event.

The defendant will attack the middle of that chain. The common defences are that the product was used in a way it was not intended to be used, that it was altered or repaired by somebody else, that the defect arose after it left the defendant's hands, or that the alleged defect did not exist at all.

Preserve the product

The single most important practical step, and the one most often missed, is keeping the thing that injured you.

Do not throw it away and do not return it to the shop without recording everything first. A retailer that takes the item back for "testing" may be the party you later sue.

Photograph everything before it is moved: the item, the failure, the scene, the packaging, any labels, batch numbers and serial numbers.

Keep the packaging and the instructions, because a claim about inadequate warnings is a claim about what the packaging said.

Keep the receipt or proof of purchase, and the record of where and when it was bought.

Get medical attention and make sure the records describe the mechanism, not just the injury. "Burn to right hand" is weaker than "burn to right hand when kettle handle detached".

Report it to the retailer in writing, and to the National Consumer Commission, which deals with product safety recalls.

A claim with the product, the packaging, the receipt and photographs is a different case from one where all that exists is a description.

Time limits

Two clocks run and both matter.

The general position under the Prescription Act is three years for a debt of this kind, running from when you knew or ought reasonably to have known the facts and the identity of the debtor.

The Consumer Protection Act also contains its own outer limit on section 61 liability, which is expressed in years from the point at which the harm occurred. The practical result is that these claims do not stay available indefinitely, and a claimant who spends two years corresponding with a retailer's complaints department is using up the time available to sue.

Send a letter of demand if you wish, but understand that it does not stop prescription running. Only summons, or the other side's acknowledgement of liability, does. Our prescription checker works out where a claim stands.

Where else to take it

Litigation is not the only route and often not the first one.

The National Consumer Commission deals with complaints under the Act, including product safety, and can require recalls. It costs nothing to complain.

The retailer's own process. For a modest loss this resolves matters far faster than a court, and a written complaint creates the record you will need later if it does not.

The Consumer Goods and Services Ombud, for disputes with participating suppliers in that sector.

The Small Claims Court where the loss falls within the limit, which is now R30 000. No attorney, no fee, and a decision on the night. Our small claims checker works out whether a claim fits.

For a serious injury, none of these substitutes for a claim in court, because the amounts involved are beyond their jurisdiction.

What section 61 does not cover

It applies to goods, so a claim about a service that was performed badly runs on different provisions and, frequently, on the ordinary law of contract and delict.

It does not turn every product failure into a claim. A product that simply stops working is a quality problem, and the remedy is the six-month return right under section 56 rather than a damages claim. Section 61 is about harm caused, not about disappointment.

And it does not remove the need to prove your loss. A frightening near-miss with no injury and no damage is not a section 61 claim, however alarming it was.

Food, medicine and the warning cases

Three categories behave slightly differently in practice, and they generate most of the serious claims.

Food. Contamination, foreign objects and undeclared allergens are section 61 territory, and the allergen cases in particular turn on the third limb: inadequate instructions or warnings. A label that fails to declare an ingredient is not a manufacturing defect at all, but it is squarely within the section. Keep the packaging, because the packaging is the evidence.

Medicines and medical devices. These attract regulatory oversight from the South African Health Products Regulatory Authority alongside the Act, and a claim often runs in parallel with a regulatory complaint. Where the alleged failure is a missing contraindication or interaction warning, the package insert in force at the time is central, so keep the box and the insert rather than only the tablets.

Recalled products. A recall is useful evidence but it is not the claim. It tends to establish that a defect existed, which helps considerably, but you still have to show that your harm was caused by it. Conversely, the absence of a recall does not mean there was no defect.

In each of these the same discipline applies as everywhere else in this area: the item, the packaging, the batch number and a medical record that describes the mechanism.

Worked example

This example is illustrative. Thabo buys a pressure cooker from a national retailer. On the fourth use the lid releases while the contents are under pressure and he suffers burns to his forearm and chest.

Under the old law Thabo would have had to prove negligence somewhere in a manufacturing chain ending in a factory he cannot inspect. Most people in his position did not bring a claim at all.

Under section 61 he must prove the product was unsafe or defective, that he was harmed, and that the defect caused the harm. He does not have to prove that anybody was careless. He can sue the retailer for the full amount, and whether the retailer recovers from the importer or the manufacturer is not his problem.

What decides his case is what he does in the first hour. If he keeps the cooker, the lid, the box and the instruction leaflet, photographs the kitchen, and gets to a hospital where the notes record how the burns happened, he has a claim an expert can work with. If the cooker goes in the bin and he returns three months later with a description and a scar, he has a much weaker one against a defendant with every incentive to say it was misused.