SUP­PLY CHAIN & LI­A­BIL­ITY

Tourism Tattler - - HOSPITALITY -

What is this so-called ‘sup­ply chain' re­ferred to in the Con­sumer Pro­tec­tion Act (CPA) and what are the li­a­bil­ity im­pli­ca­tions? Should sup­pli­ers be wor­ried?

Sup­ply chain is de­fined in the CPA as fol­lows, so you can see that it is very broad and all en­com­pass­ing:

‘The col­lec­tiv­ity of all sup­pli­ers who di­rectly or in­di­rectly con­trib­ute in turn to the ul­ti­mate sup­ply of those goods or ser­vices to a con­sumer, whether as a pro­ducer, im­porter, dis­trib­u­tor or re­tailer of goods, or as a ser­vice pro­vide'

How­ever li­a­bil­ity is not ‘au­to­matic' – the claimant will still have to prove ei­ther breach of con­tract or neg­li­gence, the lat­ter in­clud­ing the is­sue of duty of care. The ex­cep­tion is sec­tion 61 of the CPA in terms of which such neg­li­gence is not re­quired and li­a­bil­ity is ab­so­lute – your mere in­volve­ment/pres­ence in the sup­ply chain is enough!

Here is a very brief sum­mary thereof:

It ap­plies to (1) the ‘sup­ply of un­safe goods'; (2) ‘prod­uct fail­ure, de­fect or haz­ard’; (3) ‘in­ad­e­quate in­struc­tions or warn­ings pro­vided to the con­sumer per­tain­ing to any haz­ard aris­ing from or as­so­ci­ated with the use of any goods' – Scary in­deed and bear in mind that the lat­ter will in­clude not only ver­bal in­struc­tions but also stick­ers/la­bels on the goods in ques­tion and such stick­ers/la­bels may well be out­dated or so warn away/ faded as to not be leg­i­ble!

It must be borne in mind that such goods or prod­uct can in­clude ve­hi­cles hired and many events that fall un­der the head­ing ‘ad­ven­ture tourism' e.g. white wa­ter raft­ing, ca­noes, quad bikes (in­clud­ing e.g. de­fec­tive hel­mets) and the in­struc­tions that ac­com­pany these/are is­sued by the sup­plier(s) i.e. par­ties en­gaged by the travel agent, tour op­er­a­tor or DMC - third party sup­pli­ers (‘TPS’)

Even though the travel agent, tour op­er­a­tor or DMC may not have ‘pro­duced' such goods or prod­uct, it can be deemed to fall in that cat­e­gory if, as part of the ser­vices they pro­vide, they ‘sup­ply, in­stall or pro­vide ac­cess to any goods' e.g. some­thing as sim­ple as chair in a con­fer­ence room, food or park­ing. The li­a­bil­ity is ex­tremely wide and per­tains to ‘harm' de­fined as in­clud­ing the fol­low­ing: (1) ‘death or in­jury'; (2) ‘ill­ness'; (3) ‘any loss of or da­m­age to mov­able or im­mov­able prop­erty’; (4) ‘eco­nomic loss' – the lat­ter will be in­clu­sive of e.g. loss of in­come!

The li­a­bil­ity is also joint and sev­eral and this means it can be ap­por­tioned be­tween all the par­ties in­volved in the sup­ply chain.

There are ex­cep­tions (Sec­tion 61 (4)) but it is bet­ter not to rely on that only and re­mem­ber the de­fen­dant will still have to prove it.

It is there­fore im­per­a­tive for the travel agent, tour op­er­a­tor or DMC to:

1. Have proper up to date T&C;

2. In­dem­ni­ties;

3. Con­tracts with TPS which MUST in­clude in­dem­ni­ties and a

proper vet­ting of the TPS rep­u­ta­tion & risk man­age­ment; 4. Have in­surance;

5. Bring to the at­ten­tion of all pax all risks per­tain­ing to the trip of which they are aware, should be aware and in com­pli­ance with:

Sec­tion 41 (make sure your ad­ver­tis­ing, T&C, book­ing form etc is not mis­lead­ing and clar­ify an ‘mis­ap­pre­hen­sions’ im­me­di­ately);

Sec­tion 48 (make sure your ad­ver­tis­ing, T&C, book­ing form etc is not mis­lead­ing or ‘de­cep­tive’);

Sec­tion 49 (un­usual risks; risks not rea­son­ably ex­pected or that may re­sult in se­ri­ous in­jury or death must be ex­plained and drawn to the at­ten­tion of the pax in plain lan­guage, con­spic­u­ously and ac­knowl­edged by the pax and as early as pos­si­ble!!) and;

Sec­tion 51 (Res­tates the sec­tions above BUT adds that li­a­bil­ity may not ex­clude or be lim­ited to gross neg­li­gence) – this is where the in depth and de­tailed cus­tomer brief­ing is a very im­por­tant doc­u­ment.

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