Wagener and Another v Pharmacare Ltd

The appellants, Wagener and Cuttings, each underwent shoulder surgery during which a local anaesthetic, Regibloc Injection, manufactured by Pharmacare Ltd, was administered. Both allegedly suffered severe injuries, including tissue necrosis and paralysis, said to have been caused by the defective Regibloc. They sued Pharmacare in delict despite having no contractual relationship with it. Their main claim was based not on negligent manufacture, but on the allegation that Pharmacare, as manufacturer, was strictly liable for harm caused by a defective product. Pharmacare excepted to this claim on the basis that South African delict law requires proof of fault.

The appeal was dismissed. The exception upheld by the High Court was confirmed, with the result that the appellants’ strict liability claim against the manufacturer disclosed no cause of action in South African law.

This case is a leading authority in South African product liability law. It definitively confirmed that, prior to statutory intervention, manufacturers were not strictly liable in delict for defective products and that negligence had to be proved. The judgment emphasised judicial restraint in developing the common law and underscored the role of Parliament in introducing strict product liability, which later occurred through consumer protection legislation.