How to sue Tiger Brands

Human rights lawyer Richard Spoor is gearing for a fight with Tiger Brands over the listeriosis scandal that‚ to date‚ has claimed 183 lives.

Spoor believes Tiger Brands‚ one of the largest food manufacturers in the country‚ should be held accountable for failing to protect their consumers against the deadly disease.

The class action lawsuit could be the first under the 2011 Consumer Protection Act.

TimesLIVE spoke to Consumer Protection Act lawyer Paul Esselaar about how a lawsuit could work. Esselaar gave advice to victims on how to build a strong case against Tiger Brands.

1. It’s a first:

This would be the first ever class action lawsuit under the Consumer Protection Act‚ which became law in 2009. Esselaar knows of no other class action under the Consumer Protection Act. This act is unique in that consumers don’t have to prove the company that sold them the goods was negligent in making harmful goods. This makes it easier for consumers.

“Consumers don’t need to prove that the suppliers were negligent‚ only that the suppliers’ goods caused their illness‚” said Esselaar.

2. Act fast:

Consumers should be as quick as possible to secure evidence that they bought polony as they need to prove they were harmed by a Tiger Brands product or prove where they bought it if they are going after a retailer who sold them it.

3. Tiger Brands may not be only one in the dock:

Any class action suit would use Section 61 of the Consumer Protection Act‚ which makes any supplier of the goods liable‚ just as long as the consumer can prove that they were harmed by the goods which were sold by the suppliers. This means large retailers - such as Pick ‘n Pay or Shoprite - who sold polony can face action and not just the manufacturers of cold meats.

There are defences in law for suppliers to use so they don’t lose the case‚ but Esselaar’s opinion is if they could have reasonably expected to know the product was faulty they could be held liable.

It is unlikely a small corner café selling polony would be sued as a small store doesn’t do food safety checks.

4. It is going to be tough to prove:

Esselaar said the key issue right now for consumers was to do whatever they could to find and preserve evidence.

“While the Consumer Protection Act does not require a consumer to prove negligence‚ it does require the consumer to prove causation. What this means is that the consumer must find as much evidence about their case as possible‚” said Esselaar.

“For example‚ if you bought polony at a store you need to find out whether that store has CCTV footage and ask for a copy of that footage from the store before it is destroyed. Remember that evidence includes witness testimony‚ but even then people forget‚ so it is a good idea for everyone to write down what they remember while they still remember it.”

Causation can be tricky‚ but not impossible.

“It would be best to get evidence as quickly as you can‚” said Esselaar.

5. Lawyers on the side of big guys:

Esselaar said that if he was representing the retailers or producers his focus would be to show the consumer couldn’t prove where they bought the product or that they ate the product‚ making them ill.

“It is likely that attorneys acting for the suppliers will focus their efforts on causation‚” said Esselaar. “Essentially what they will argue is that it is impossible to prove that the case of listerosis started at their client’s shop.

“If I was a lawyer I would focus my attention on disproving or challenging plaintiffs’ evidence of where they bought products or what they bought that harmed them.”

6. It could take a very long time:

The only way a lengthy case could be avoided is for the retailers and suppliers to agree to the consumers’ initial demands‚ which are bound to be high.

“Unless the class action is settled‚ this case could take years to get through all the courts as it is quite possible it will be appealed the whole way up to the Constitutional Court.”

Spoor’s first class action lawsuit — which involves taking on large mining companies on behalf of gold miners who developed silicosis from gold dust — has been ongoing for two years‚ and if a settlement is not reached this year‚ as expected‚ there are some estimates it could take as long as 15 years.