Wagener v Pharmacare Ltd, Cuttings v Pharmacare Ltd (32/2002, 7001/2000) [2003] ZASCA 30; [2003] 2 All SA 167 (SCA); 2003 (4) SA 285 (SCA); 2003 (7) BCLR 710 (SCA) (28 March 2003)

Wagener v Pharmacare Ltd, Cuttings v Pharmacare Ltd (32/2002, 7001/2000) [2003] ZASCA 30; [2003] 2 All SA 167 (SCA); 2003 (4) SA 285 (SCA); 2003 (7) BCLR 710 (SCA) (28 March 2003)

The Supreme Court of Appeal held that South African law does not impose strict liability on manufacturers for harm caused by defective products in the absence of fault. The Aquilian action, which requires proof of negligence, remains the appropriate remedy for unintended bodily harm, and its requirements are not rendered inadequate by constitutional considerations. The court found that incremental development of the common law is possible, particularly regarding the application of res ipsa loquitur and the incidence of the onus, but a wholesale shift to strict liability is a radical departure that should be effected by the legislature, not the judiciary. The court rejected analogies to...

Citation
[2003] ZASCA 30
Parties
Appellant: Anna Elizabeth Jacomina Wagener; Respondent: Pharmacare Ltd; Appellant: Rita Elizabeth Cuttings
Court
Supreme Court of Appeal
Jurisdiction
South Africa
Judgment Date
28 March 2003
Case Number
32/2002, 7001/2000
Procedural Posture
Civil Appeal / Appeal From Cape Town High Court; Exception to Particulars of Claim Upheld, Leave to Appeal Granted
Outcome
Appeal dismissed with costs, including costs of two counsel.
Judges
Howie, Marais, Conradie, Cloete, Jones
Legal Topics
Product Liability, Strict Liability, Aquilian Action, Bodily Integrity, Res Ipsa Loquitur
Delict Product Liability Strict Liability Aquilian Action Bodily Integrity Res Ipsa Loquitur

Case Brief

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Parties

Anna Elizabeth Jacomina Wagener

Appellant

Pharmacare Ltd

Respondent

Rita Elizabeth Cuttings

Appellant

Procedural Posture

Civil Appeal / Appeal From Cape Town High Court; Exception to Particulars of Claim Upheld, Leave to Appeal Granted

Legal Issues

  1. 1 Whether a manufacturer is strictly liable in delict for harm caused by defective manufacture of a product where there is no contractual privity with the injured party.
  2. 2 Whether the Aquilian action is inadequate to protect constitutional rights to bodily integrity in cases of defective products.
  3. 3 Whether the principle of strict liability should be judicially imposed or left to legislative intervention.

Ratio Decidendi

The Supreme Court of Appeal held that South African law does not impose strict liability on manufacturers for harm caused by defective products in the absence of fault. The Aquilian action, which requires proof of negligence, remains the appropriate remedy for unintended bodily harm, and its requirements are not rendered inadequate by constitutional considerations. The court found that incremental development of the common law is possible, particularly regarding the application of res ipsa loquitur and the incidence of the onus, but a wholesale shift to strict liability is a radical departure that should be effected by the legislature, not the judiciary. The court rejected analogies to...

Court Disposition

Appeal dismissed with costs, including costs of two counsel.

Orders

  • The appeal is dismissed.
  • The appellants are ordered to pay the respondent's costs, including the costs of two counsel.