Wagener v Pharmacare Ltd; Cuttings v Pharmacare Ltd

• Jurisdiction: South Africa
• Judge: Howie P, Marais JA, Conradie JA, Cloete JA and Jones AJA
• Judgment Date: 28 March 2003
• Citation: 2003 (4) SA 285 (SCA)
• Docket Number: 32/2002
• Hearing Date: 07 March 2003
• Counsel: R S van Riet SC (with F van Zyl SC) for the appellants. C M Eloff SC (with F A Snyckers) for the respondent.
• Court: Supreme Court of Appeal

Howie P:

[1] This matter concerns the extent to which a manufacturer can be strictly liable in delict for unintended harm caused by defective manufacture of a product where there is no contractual privity between G the manufacturer and the injured person.

[2] The appellant in the first appeal underwent shoulder surgery at a private hospital conducted by a trust. The surgical procedure involved administration of a local anaesthetic called Regibloc Injection ('Regibloc') which was manufactured and marketed by the H respondent company. As an aftermath of the surgery the appellant was left with necrosis of the tissues and nerves underlying the site of the operation, and paralysis of the right arm.

[3] In an action for damages for personal injury which the appellant instituted in the Cape Town High Court, she sued the I respondent and the trustees of the trust. She alleged, among other things, that her injury and its sequelae were caused by Regibloc. A virtually identical suit was brought by the appellant in the second appeal, another alleged victim of Regibloc. The two actions were consolidated. For present purposes what J

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is decided in respect of the first appeal applies to the other, and is confined to the A respective claims against the respondent. I shall simply refer, for convenience, to the parties in the first appeal. There are frequent references in the record to the respondent as manufacturer, seller and/or distributor but it is sufficient, in the judgment, to refer to manufacture because it is the respondent's role as manufacturer that is crucial. B

[4] As was to be expected, one of the causes of action the appellant relied on was that the Regibloc administered to her was defective as a result of negligent manufacture by the respondent. However, that was pleaded only in the alternative. Her main claim was based simply on the allegation that, contrary to the respondent's C duty as manufacturer (obviously meaning legal duty in the delictual sense) the Regibloc administered was unsafe for use as a local anaesthetic because it resulted in the necrosis and paralysis referred to.

[5] The respondent excepted to the main claim as disclosing no cause of action in that it failed to allege fault in the manufacture D of the Regibloc in question and purported to contend that, as manufacturer, the respondent was subject to strict liability for the alleged injurious consequences. E

[6] The exception was argued before Fourie AJ. He upheld it but granted leave to appeal.

[7] In deciding the issues raised by the appeal it must be accepted, as regards the facts, that the Regibloc in question was manufactured by the respondent, that it was defective when it left the respondent's control, that it was administered in accordance F with the respondent's accompanying instructions, that it was its defective condition which caused the alleged harm and that such harm was reasonably foreseeable. It must also be accepted, as far as the law is concerned, indeed it was not disputed, first, that the respondent, as manufacturer, although under no contractual G obligation to the appellant, was under a legal duty in delictual law to avoid reasonably foreseeable harm resulting from defectively manufactured Regibloc being administered to the first appellant and, secondly, that that duty was breached. In the situation pleaded there would therefore clearly have been unlawful conduct on the part of the H respondent: Ciba-Geigy (Pty) Ltd v Lushof Farms (Pty) Ltd en 'n Ander. [1] The essential enquiry is whether liability attaches even if the breach occurred without fault on the respondent's part.

[8] At the outset it is appropriate to say that the subject of product liability has over recent years been informed and illuminated I in South Africa by legal textbooks as well as academic and journal writings which have all appreciably assisted in shaping and determining the debate on J

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the present issue. [2] In this Court that debate centred on rival submissions which may briefly be A summarised as follows.

[9] For the appellants it was argued that for a variety of reasons the common-law remedy by which to protect and enforce the appellants' constitutional right to bodily integrity, [3] namely the Aquilian action for damages, was inadequate to achieve those ends. In terms of the B Constitution, so it was said, the Court was therefore obliged, in weighing and balancing the conflicting interests of consumers and manufacturers, to develop the common law by having recourse to the spirit, purport and objects of the Bill of Rights in order to 'fashion a remedy' that did achieve the requisite protection. [4] South African law, the argument went on, had already attached strict liability for consequential C damages arising out of defective merchandise to a merchant seller who professes expert knowledge in relation to such goods (Kroonstad Westelike Boere Ko-operatiewe Vereniging Bpk v Botha and Another. [5] I shall call it the 'Kroonstad case') and it required no more than a decision of legal policy, and a modest shift of principle, to extend such D liability to a manufacturer in the circumstances of the present matter. It was pointed out, in addition, that in a more recent decision of this Court the question had been posed whether the law in this country in the field of product liability might not in any event have been 'perceived to have lagged behind'. [6] It was E emphasised that there are instances of strict liability which are well known to the law of delict, for example, the pauperien action, the actio de effusis vel dejectis and the action based on unlawful deprivation of personal freedom. Apart from these survivors from the past there are, the submission continued, well-founded present-day reasons of expediency, commercial equity and public F protection which have influenced the developers of the law in comparable jurisdictions to impose strict liability on manufacturers in situations like the one in this case. In elaboration of this submission, much reliance was placed on the legal position in the United States of America and in particular the provisions of s 402A of G

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the American Law Institute's Restatement of the Law (Second) Torts 2d [7] and cases such as Greenman A v Yuba Power Products Inc. [8]

[10] One of the major reasons, according to the appellants' argument, why proof of fault should not be a requirement in a case such as this is that fault is most often extremely difficult to prove. A plaintiff has no knowledge of, or access to the manufacturing process, either to determine its workings generally or, more particularly, to B establish negligence in relation to the making of the item or substance which has apparently caused the injury complained of. And, contrary to what some writers suggest, it was urged that it is insufficient to overcome the problem that the fact of the injury, consequent upon use of the product as prescribed or directed, brings the maxim res C ipsa loquitur into play and casts on the defendant a duty to lead evidence or risk having judgment given against it. The submission is that resort to the maxim is but a hypocritical ruse to justify (unwarranted) adherence to the fault requirement.

[11] Reverting to the Kroonstad case, it was contended that it was anomalous that where the injured party was the D buyer, and the seller was not even the manufacturer, strict liability applied, whereas in the absence of a contractual relationship between the parties, fault had to be proved. Accordingly, so the appellants' argument concluded, the time was now ripe to impose strict liability and it was the Courts that were in the better position than the E Legislature to do so because the imposition of such liability was best implemented incrementally, on a case by case basis, depending on the specific circumstances of each.

[12] I should add that when asked whether extension of the principle in the Kroonstad case meant that the proposed new liability was to be founded on breach of some implied contractual F warranty, or in delict, counsel for the appellants said that such categorisation was unnecessary and obstructive; all that was required was a policy decision to cater for what was an obvious weakness in an injured consumer's legal armoury.

[13] For the respondent it was argued that the Kroonstad case was of no assistance because it concerned a G warranty imposed by the law of sale. The issue here, so it was said, arose squarely and solely within the field of delictual law and imposition of the liability for which the appellants contended would bring about a fundamental change in that law which would be contrary to the principle of stare decisis. In addition, it was H submitted that it would be illogical and unworkable...