Retailers liable for damage caused by goods

Lief Petersen who runs an NGO, Sustainable Livelihoods Foundation, wondered if he was being unreasonable in expecting a plumbing supply company to foot the bill when the pressure switch in his water-saving installation ruptured and flooded his basement with 2 500 litres of water.

Yes, he is. Although Rob Boyd of Plumbing Etc, which is part of R James Hardware, Wynberg, replaced the pressure switch he drew the line at paying for the water or any other costs associated with the failure.

Mr Petersen of Lakeside bought a 5 000-litre water tank in May 2017 as he believed that Cape Town “may enter into significant water challenges in the near future”.

“Despite the drought conditions we had enough rain over winter to fill the tank entirely. I was rather proud of myself and to have what reflects, on our consumption rates, at least 50 days of stored water for my household of four people.

“I contracted a plumber in December to connect the tank to a drinking water tap in my kitchen so we could start using the water, via a pump and pressure switch, which activates the pump when the tap gets turned on. The plumber connected the system and it was operational. We went away over Christmas for five days, but when we got back the kitchen tap was not working.

“I checked the system which had been installed under my house to find that the pump, in my absence, had systematically pumped 2 500 litres of my stored water into my basement. Luckily, the water soaked into the dirt floor and no damage was done to the house,” said Mr Petersen.

He called the plumber who determined that the pressure switch had ruptured which triggered the pump, draining the remaining water from the tank.

The plumber bought all the parts for the installation from Plumbing Etc.

“Mr Boyd replaced the pressure switch without hesitation. However, they refuse to entertain my claim for the lost water and to reimburse the plumber. I have been in an ongoing debate with them about the broader harm caused by the product they sold me.

“I have asked them to cover the cost of the plumber (R700) even though he did the emergency work for free, and the replacement of the 2 500 litres of water.

“According to my interpretation of the Consumer Protection Act, the failure of the pressure switch has caused me harm in that I have lost half of my disaster planning strategy in the form of
2 500 litres of water, which although I harvested myself, has a genuine financial value and potential harm, in that, along with everyone else, should Day Zero arrive, I will have to queue for water rations.

“Mr Boyd tried to send me up the supply chain to his suppliers. However, I refused. Later Mr Boyd sent me an email: ‘I’m not sure why you would deem it necessary to demand payment from me for plumbing work that you didn’t even get charged for. I’m also confused about why you think I am responsible in the long chain of supply to cover the costs of your apparent losses. I again apologise for the lost harvested water… but we at Plumbing Etc. did not intentionally set out to waste this water, as I am sure the manufacturer did not intentionally make a defective unit’.

“I have been asking Mr Boyd to compensate the plumber for his time, and replace my lost water. He says I am unreasonable, yet my interpretation of the CPA and ‘harm’ tells me I am very much in my right to make this demand of them. The plumber agrees,” said Mr Petersen, who also sent me a blog from a firm of attorneys explaining the relevant section: ‘The supplier is, however, entitled to protect itself and limit its liability contractually regards other persons in the supply chain”.

But Mr Petersen’s interpretation is ‘that the supplier can protect itself and limit its liability contractually against its producer, importer, distributor and retailer, but not against the consumer’.

“I know they are not in the business of selling faulty parts, but despite what they think I don’t believe I am unreasonable in trying to ensure that my preparedness for the water crisis is not put in jeopardy which is now the case,” Mr Petersen said.

Perhaps. But as I understand it, harm refers to personal injury caused by a flaw that made the item unsafe.

Ouma Ramaru from the Consumer Goods Ombudsman (CGSO), said that Section 61 provides that the producer, importers, distributors, and retailers of goods will be liable for damage caused by the items irrespective of whether negligence can be established.

“This relieves the consumer of proving fault, although the consumer must still prove that the product had some flaw that made it unsafe or otherwise defective in terms of the definition set out in Section 53.

Mr Petersen will find that extremely difficult to do. A pressure switch is slightly different to Enterprise polony infected with the listeria bacteria.

“There are, however, defences available to suppliers. One defence is if the defect ‘did not exist in the product at the time it was supplied’. “There is also no liability if it is unreasonable to expect the distributor or retailer to have discovered the product defect, and removes liability for risks which could not reasonably have been anticipated,” Ms Ramaru said.

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