There are clear rules regarding customers causing damage to goods while examining them. Jana Van Zyl of consumer law experts Robertson Teuteberg Kirk explains who is liable.
The Consumer Protection Act 68 of 2008 (CPA) makes provision in Section 18 for the consumer’s right to choose or examine goods. What does this right entail and why is it important to consider it? What are the implications, taking the high-value items sold by the motor vehicle industry into consideration?
Examine all angles
The right to choose and examine goods entitles the consumer to inspect merchandise that a supplier displays for sale. If goods are displayed, the consumer can choose any item from stock before entering into the transaction. So, if a dealer has a vehicle on display in a showroom, a consumer is entitled to examine it in order to determine whether or not they want to buy it. Similarly, if a dealer sells accessories, the consumer can choose one from the stock on display.
But the right goes further than simply studying the goods on display: in terms of this right, a supplier can’t hold a consumer liable for damage caused to goods on display although there are some exceptions to this general rule. A dealer may take the view that they can have a notice or sign to the effect of “you will be liable for damage caused to goods on display”. However, the CPA clearly states that despite such notice, a consumer won’t be liable for the damage.
In practice, this means if a consumer accidentally scratches a new vehicle on display in the showroom, the dealer can’t hold the consumer liable for this damage (which may be a substantial amount). Or if a consumer picks up any accessory on display, and accidently drops it, the dealer can’t charge the consumer if the item breaks or is damaged.
Exceptions to the rule
It is important to understand that this general principle won’t always apply. The consumer will still be liable for the damage caused to goods on display if they act in a manner that amounts to gross negligence, recklessness, malicious behaviour or criminal conduct. In these cases, the supplier can hold the consumer responsible for the damage caused to the goods. The difficulty comes in when it is necessary to determine whether or not the consumer acted in this manner. It should be rather easy to determine whether the consumer acted criminally or with the intention to cause damage (maliciously). For example, if a salesperson unintentionally angers a consumer and the consumer kicks a dent in the vehicle out of anger or frustration, the consumer clearly had the intention to cause damage to the vehicle and, because of this malicious behaviour, the consumer will be liable for the damage.
The more difficult scenarios to determine are whether or not the consumer acted in a grossly negligent or reckless way. This is tricky because different people could interpret it differently. Grossly negligent behaviour refers to something in between an accident (negligence) and causing damages intentionally (malicious intent).
A consumer will be regarded as having acted recklessly if they acted in a manner that is irresponsible to the extent that one can almost see it as intentional. For example, if a parent goes into a showroom with their children and the kids scratch the vehicles on display with their toys and the parent doesn’t stop them, despite being aware of their conduct, this could be seen as reckless behaviour.
It’s also important to remember that suppliers may still make the rules on how they expect consumers to behave in their showrooms. The old principle of ”right of admission reserved“ doesn’t fall away in terms of the CPA. But bear in mind that a supplier can’t reserve admission to certain categories of people based on one of the discrimination grounds in the Constitution.
If a supplier needs to interpret this right in order to decide whether or not a consumer is liable for damages, it’s important that the supplier uses its discretion and considers all the surrounding circumstances. The bottom line is that if it was a mere accident, the consumer won’t be liable.