strict liability for defective products: balancing of interests...

Introduction

Malaysian Journal of Consumer and Family Economics

Strict Liability for Defective Products: Balancing of Interests betweenConsumers and Producers

NaemahAminDepartment of Public Law,

Ahmad Ibrahim Kulliyyah of Laws, HUM

Abstract

A system of strict liability for defective productshas been incorporated into Malaysian lawthrough Part X of the Consumer Protection Act1999 (hereinafter referred to as the CPA). It isaimed at providing better protection to the victimof defective or unsafe products. However thesystem is founded on the policy considerationthat product liability law should maintain a fair,just and proper balance between the interest ofthe consumer and the interest of the producer.Consequently liability for defective productsmay be strict but not absolute. A producermay free himself from liability if he furnishesproof as to the existence of certain exoneratingcircumstances.

The aim of this paper is to examine whetherthe law is really able to strike a balance betweencommercial interests and consumer protection inthe area of product liability. The main focus of thepaper is the extent to which the principle of strictliability under Part X of the CPA realises its mainobjective to improve the substantive position ofthe victims of defective products, beyond thatalready afforded to them under the common law.All the defences available to the defendants inproduct liability claims will then be considered.The discussion wiIJ assess the extent to whichthose defences can be justified as a means ofreducing or intruding upon the compensationrights of the injured persons.

Liability for defective products or productliability generally refers to the civil liability ofthose involved in the production and distributionof products to buyers, users and bystandersfor damage or injuries suffered because ofdefects in products. It has been developed asone of the important branches of consumerprotection law in facing the unknown risks ofmodem technological production. With the mainobjective of compensation, product liability lawseeks to provide redress for damage suffered bythe victim of defective or unsafe products. Overthe years product liability law has undergonerapid changes in many countries in differentparts of the world. The concept of strict productliability is now an accepted part of the regimefor consumer protection in most industrializedcountries such as the USA, the EC, Australiaand Japan. The adoption of similar concept inMalaysia brings our product liability law in linewith the law in those countries.

The strict liability rule imposes the primaryliability of losses caused by defective productson the producer who is the dominant link in themarket chain. The producer is responsible notonly for their production but also, through salespromotion activities, for creating consumerdemand and expectations. Furthermore, he is theparty best able to bear the liability since he canobtain insurance and pass on the increased cost of

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Strict Liability for Defective Products: Balancing of Interests between Consumers and Producers

I The landmark decision in the US was that of the California Supreme Court in Greenman v Yuba Power Product Inc. (1963)377 p.2d ..697. See generally, Howells. 1992. Comparative Product Liability. Dartmouth Publishing: Aldershot. Chapter 13.

1 The doctrine of privity of contract prevents third party from suing on the contract and in tort, the proof of negligence is noteasy.

J See generally, H.Teff and C. Munro. 1976. Thalidomide: The Legal Aftermath. Saxon House.

premiums to his customers by way of an increasein prices. Under the rule, once the product isproven to be unsafe and it has caused personalinjury or property damage to the consumers, theproducer of the product will be strictly liable.Consequently, proofthat he has taken reasonablecare will not afford protection to the producer.However, the producer can still escape liabilityby relying on specific defences provided underthe rule.

Background of Strict Liability Rule

The system of strict liability for defectiveproduct was first introduced in the USA I as ameans of overcoming the problems inherent incontractual and negligence remedies.' Howeverthe Thalidomide tragedy in 1961 was a majorimpetus behind the call for the imposition of strictliability for defective products throughout Europeand in the UK in particular. The tragedy was aclear example of a catastrophic consequence of adefective product in which thousands of childrenall over the world were born with congenitaldisabilities after their mothers had taken theThalidomide drug during pregnancy. More than400 children in England alone were discoveredto have been affected. The difficulties of provingnegligence on the part of the company which hadmanufactured the drug gave rise to a wide publicdebate on the product liability issues.'

A serious study of the matter was neverthelessstarted only after 1970. Reform of the productliability law in the UK was considered by theEnglish and Scottish Law Commissions" and

the Royal Commission.' Both Commissionsrecommended the imposition ofstrict liability onthe part of the producer of defective products afterthey came to the conclusion that the existing lawwas unsatisfactory. Their reports were also greatlyinfluenced by proposed international agreements,namely, the Strasbourg Convention" and the draftEC Directive. The EC Directive on Liability forDefective Products? which was adopted on 25July 1985 later became the major force for theadoption of strict liability for defective productsin the EC.

It introduced the concept ofliability withoutfault on the part of the producer as stated inArticle I that 'the producer shall be liable fordamage caused by a defect in his product'. Suchliability has been described in the Preambleas 'the sole means of adequately solving theproblem, peculiar to our age of increasingtechnicality, ofa fair apportionment of the risksinherent in modem technological production'.The United Kingdom became the first state toimplement the Directive and this was achievedby Part 1 of its Consumer Protection Act 1987.Since Part X of Malaysian CPA is adopted fromthe UK Act, our product liability law is actuallygreatly influenced by the Directive. The Directivehas also influenced the development of productliability laws in other countries outside the EC,for example New Zealand, Australia, Taiwanand Japan.

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Strict Liability under Part X of the CPA

Section 68( I) of the CPA provides that 'where anydamage is caused wholly or partly by a defect in aproduct, the following persons shall be liable forthe damage'. 8 It is clearly understood from thisprovision that the liability can be imposed withoutproof of fault. There is also no requirement for acontractual relationship between the parties sincea claim can be made by 'a person who sufferedthe damage', who is not necessarily the buyer,"Thus, to succeed in a product liability claim, theplaintiff has only to prove damage, defect in theproduct and the causal link between the two.Unlike liability in negligence which is based onthe conduct of the producer, the main focus ofthe strict liability rule is the defect in the product.The advantage of this approach for the plaintiffis that liability may be imposed by reason ofthe existence of a defect alone. For example, ifa consumer is supplied with contaminated foodand it causes injury to him, the producer of thefood will be strictly liable under Part X. The issueof how the food has became contaminated orwhether a risk of contamination can be discoveredor avoided is irrelevant.

Part X however does not cover everyproduct. Section 66 defines 'product' as 'anygoods and, subject to sub-section (2), includes aproduct which is comprised in another product,whether by virtue of being a component part orraw material or otherwise.' In this definition twotypes of products are clearly covered by Part X,

namely, goods and component parts and rawmaterials. 'Goods' are defined in s 3(\) to mean'goods which are primarily purchased, used orconsumed for personal, domestic or householdpurposes, and includes:

(a) goods attached to, or incorporated in, any realor personal property;

(b) animals, including fish;(c) vessels and vehicles;(d) utilities; and(e) trees, plants and crops whether on, under and

attached to land or not, but does not includechooses in action, including negotiableinstruments, shares, debentures and money.'

It is reasonably clear that the definition coversall consumer goods including articles fixed to theland such as air-conditioners, furniture, etc. andutilities such as water and electricity. Althoughvessels and vehicles are included in the definition,injuries caused by major capital items such asships and aircraft are not covered since they arenormally bought for commercial purposes. Byvirtue of s 68(5) fresh or unprocessed agriculturalproduce are excluded from the strict liabilityrule.'? Thus oranges in a natural state would beexempted, but not orange juice; apples but notapple pies; fresh meat, fish and chicken but notfrozen meat, fish and chicken. The main reasonfor the exemption is to protect farmers andfishermen who are mostly in business in a smallway with little net revenue.

4 The Law Commission and the Scottish Law Commission, Liability for Defective Products, HMSO Cmnd. 6831.5 The Royal Commission Report on Civil Liability and Compensation for Personal Injury (1978) Vol. I, HMSO

Cmnd.7054.6 The Strasbourg Convention on product liability in regard to personal injury and death was adopted by the

Council of Europe in 1977 and was opened for signature in January 1977. However, it was not signed by the UK.7 European Directive (85/374/EEC) 25 July 1985.8 Emphasis added. The section then lists down the persons to be held liable.9 Section 68(2) of the CPA.

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10 'Agricultural produce' is defined in s 66(1) as 'any produce of the soil, of stock-farrning.or of fisheries.'" Section 68( I) of the CPA. Another party may be sued under Part X is own-brander and importer.12 The Law Commission and Scottish Law Commission, para 23.Il Section 66(1) states "producer", in relation to a product, means - (a) the person who manufactured it; (b) in the case of a

substance which is not manufactured but is won or abstracted, the person who won or abstracted it; (c) in the case ofa productwhich is not manufactured, won or abstracted but essential characteristics of which are attributable to an industrial or otherprocess having been carried out, the person who carried out that process.

\. See the definition of 'manufacturer' in s 3(1) of the CPA.IS Section 70 of the CPA specifically states for the application of this general law for the purpose of product liability claim under

Part X.

Obviously therefore Part X does not makeevery person connected with the product liable.The primary responsibility for damage caused bya defective product is placed on the producer ofthe product. 11 This is in line with one of the policyconsiderations in introducing strict liability,namely, to place the responsibility for damagecaused by a defective product on the persons;

(a) who created the risk by supplying thedefective product for commercial purposes;

(b) who are in the best position to exercise controlover the quality and safety of the product;

(c) who can most conveniently insure againstit.12

The producer is widely defined to coverevery person involved in the manufacturingprocess, pre-manufacturing activity and theprocessing of a natural product." The produceralso includes someone who purely assemblescomponents made by others, for example bymixing ingredients, or fixing a unit supplied inkit form." However the designer and supplier ofservices such as installers, repairers, dry-cleanersand others. although directly connected withthe product are not within the definition of a'producer' .Damage is defined in s 66( I) of the CPA asmeaning 'death or personal injury, or any lossof or damage to any property, including land,as the case may require'. Obviously death and

personal injury are the most important and seriousconsequences that may be caused by a defectin the product which strict liability rule mainlyaims to compensate. They may be recoverableunder the existing law of damages for personalinjuries and death which is contained in theCivil Law Act 1956.15 Part X however restrictsrecovery of damages for loss and damage toproperty. Based on s 69( I), there are three typesof irrecoverable property damage under Part X,namely, the defective product itself, a componentpart comprised in the defective product andcommercial property.

The Meaning of Defect

Liability under Part X focuses on the condition ofthe product. However, the product must be provedto be defective before liability can be imposed onthe producer. Thus, defectiveness becomes thekey concept of the strict liability rule. Section67( I) of the Act states that 'there is a defect in aproduct for the purposes of this Part if the safetyof the product is not such as a person is generallyentitled to expect'. It is reasonably clear that thedefinition of 'defect' is based on the concept ofsafety. Section 67(4) states that safety in relationto a product shall include:

(a) safety with respect to products comprisedtherein;

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(b) safety in the context of risk of damage toproperty; and

(c) safety in the context of risk of death orpersonal injury.

Part X clearly adopts the consumer expectationtest in determining defectiveness. Safety isto be judged according to what 'a person isgenerally entitled to expect' .16 The applicationof the consumer expectation test in determiningproduct safety standard can be illustrated in anumber of cases decided under the CPA of UK.In the case of A and Others v National BloodAuthority and othersF' the contaminated bloodwas held to be defective as the judge was satisfiedthat "the public at large was entitled to expectthat the blood transfused to them would be freefrom infection". Burton.J in this case held thatthe issue of safety should be judged not basedon actual expectation of the public but on theirentitlement to expectation and this is the matterto be decided by the court. Similarly in Abouzaidv Mothercare (UK) Ltd.,18 the Court of Appealheld that the pushchair's cover was defectivesince the consumer is entitled to expect that theproduct to be safely designed. On the other hand,in Bogle and others v McDonald's RestaurantsLtd,19 the court was satisfied that the safety ofthe hot drinks served by McDonald was such aspersons generally are entitled to expect despitethe fact that the spillage of hot drinks had causedserious injuries to many customers.

Obviously safety is a variable and relativeconcept and thus there will often be a scope for

debate over questions offact, degree and standardin deciding whether or not a particular productwas unsafe and therefore defective. Section 67(2)states that "all relevant circumstances shall betaken into account", including:

(a) the manner in which, and purposes for which,the product has been marketed;

(b) the get-up of the product;(c) the use of any mark in relation to the

product;(d) instructions for or warnings with respect to

doing or refraining from doing anything withor in relation to the product;

(e) what might reasonably be expected to be donewith or in relation to the product; and

(f) the time when the product wassupplied by its producer to another.

In A and Others v National Blood Authority andothers", it was held that the avoidability of therisk of harm is not a relevant circumstance indeciding the issue of defectiveness. Howeverthe existence and adequacy of any instruction orwarning with regard to the correct usage of theproducts is a very relevant factor to be considered.In Worsley v Tambrands Limited." the plaintiffsuffered from Toxic Shock Syndrome (TSS) afterusing the defendant's tampons. In accepting thedefendant's submission that there was no caseto answer under the CPA, the Court held thatthe warning of the association between TSS andtampon use on the outer packaging of the productand some detail ofthe risk in the leaflet inside the

16 By contrast, Article 6( I) of the Directive states that 'a product is defective when it does not provide the safety which a personis entitled to expect

17 [2002] 3 All ER 289.18 [2001]3 CL 109. In this case a "cosy toes" cover fixed by elastic straps injured the plaintiff's eye when one of the straps

sprung back while he was helping his mother to fix it to his brother's pushchair.19 [2002] EWI-IC 49020 [2002] 3 All ER 289.21 [2000] PIQR 95.

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packaging were adequate. The product thereforedid not have a defect within the meaning of PartI of the UK CPA. This case illustrates that thedefinitions of 'defective' has been construed ina way which can be prejudicial to the consumerwhere a warning has been given.

Nevertheless, the main hurdle to a successfulclaim under Part X is to establish a causal linkbetween the defects in the product and the injuriessuffered by the consumer. This is particularlyobvious in cases involving adverse health effectsof certain products such as a drugs, cigarettes,Extremely Low Frequency (ELF) radiation, etc.Since the injury can be a cumulative effect ofprolonged, undiagnosed exposure, or can takeyears to develop, causation issues can be cloudedby other factors such as intervening health factors.Additionally, it may take years for a health effectof the defect in the product, such as certain sideeffects of a drug to be medically or scientificallyrecognized.

This difficulty can clearly be illustrated inthe English case of XYZ and others v ScheringHealth Care Ltd.22 In this case a group ofwomen filed an action against manufacturersof different brands of the oral contraceptive(Femodene, Marvelon, Minulet and Mercilon)in respect of side-effects allegedly suffered as aresult of taking the so-called 'third-generation'combined oral contraceptive pills (COC3s). Thealleged side-effects were various types of cardio-vasculour injuries such as deep vein thrombosis(DVT), pulmonary embolism, strokes and others.However, after a detailed analysis of scientificstudies and evidence, the court found that therewas no proof that the drug carrying excess riskof venos-thromboemolism and the product,therefore, was not defective and was not the causefor the alleged side-effects.

22 [2002] EWHC 1420.

Defences

The seventh preamble of the EC Directive providesthat, there should be 'a fair apportionment of riskbetween the injured person and the producer [sothat] the producer should be able to free himselffrom liability if he furnishes proof as to theexistence of certain exonerating circumstances' .Consequently liability for defective productsmay be strict but not absolute. There are certaindefences available to any person who is suedunder the strict liability rule which may be seen asa mean of achieving some sort of balance betweenconsumers' needs and producers' fears.

Section 72(1) of the CPA states that, 'inany civil proceeding under this Part against anyperson in respect of a defect in a product, it shallbe a defence for that person to show;

(a) that the defect is attributable to compliancewith any requirement imposed under anywritten law;

(b) that he did not at any time supply the defectiveproduct to another person;

(c) that the defect did not exist in the product atthe relevant time;

(d) that the state of scientific and technicalknowledge at the relevant time was notsuch that a producer of products of the samedescription as the product in question mayreasonably be expected to discover the defectif it had existed in his product while it wasunder his control;

(e) that the defect -(i) is a defect in a product in which the

product in question is comprised therein(the "subsequent product"); and

(ii) is wholly attributable to -(A) the design of the subsequent

product;

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or(B) compliance by the producer of the

product in question with instructionsgiven by the producer of thesubsequent product. '

Basically the defence of compliance withlegal requirements will only be available if thedefendant had no choice in the matter because hewas under a legal obligation to comply, such asstandard specifications made under the Standardsof Malaysia Act 1996. In practice the defenceseems to have a very limited application, and isprobably confined to those cases where the legalrequirement is itself inadequate because it ismisconceived or outdated." The defence that theproducer did not supply the product is intendedto exclude a person who is not responsible for aproduct being on the market. It is clearly unfairand unreasonable that strict product liabilitybe imposed on the producer in a country likeMalaysia which has the reputation of beinga market for counterfeiting. The defence thatthe defendant did not supply the product willbe very significant in protecting the originalproducer. However, it may not be enough for theoriginal producer to say that he did not supplythe counterfeit product. He must be able to provethat his products are distinguishable, whether byobvious or clandestine means. Since 'supply' isdefined in s 3(1) to mean 'to supply or resupplyby way of sale, exchange, lease, hire and hire-purchase', the producer of promotional gifts, freesamples, demonstration models and trial productswill also be protected by the defence.

The producer may also be exonerated fromliability if he can prove that the defect didnot exist in the product during the course of

production and when the product was suppliedby him to another person. This defence, whichmay be the most important defence in practice,protects the producer where the defect is due tomishandling, poor fitting, servicing, transporting,adjusting or faulty installation or repair. In otherwords it excuses the producer who can provethat the defect was not caused by his fault. Sinceevery person in the chain of distribution is entitledto plead this defence, including the person whomay be at fault, it may result in the loss havingto be borne by the injured party. It may be arguedthat in the system of strict liability, those lossesshould be borne by the producer rather thanthe consumer and that the producer should beresponsible for his product supply chain. Thecomponent manufacturer's defence under s72(I)(e) is clearly in line with the basic rule ofproduct liability law whereby the liability willonly be imposed if the product is defective. Thecomponent manufacturer who produced a productwhich was originally not defective cannot beconsidered responsible for the subsequent defectin the product when it has been comprised in thefinal product.

The Development RisksDefence

Of all the specific defences available under thestrict liability rule, the most important and themost controversial is the development risksdefence. It is founded on the notion that a personcan never be blamed for not knowing what hasbeen at the time unknown. As Denning LJ in Roev. Minister of Healthr" stated that, 'we must notlook at the 1947 accident with 1954 spectacles'.Thus if a drug, for example, Viagra, is found to

2J NotabdlYunder s.75AL of the Australian Trade Practices Act 1974 the state should take the responsibility to compensate theInjure party In such cases.

24 [1954]2 QB 66.

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2l [2002] 3 All ER 289.l6 The wording of s 72(I)(d) is taken from section 4(1)(e) of the UK Act but the word 'reasonable' is not found in the UK

provision.27 NaemahAmin. 2003. "Strict Liability For Infected Blood Transfusion". In Issues in Medical Law and Ethics Eds. Puteri Nemie

and Abu Haniffa. Law Centre: IIUM, 110-117.18 Section 70(4).

cause heart attack, then it may be consideredto be defective at the moment it was supplied.However, it may be open to the producer to arguethat the causal connection between the drug andthe disease was not scientifically discoverable atthe time the product was supplied to the public.The defence undeniably would be of particularimportance to high-technology industries such aspharmaceutical, chemical, aerospace and motorvehicles. The defence has been included in theUK law and the majority of EC countries. As adeveloping country, Malaysia cannot afford tohave a law on product liability which is stricterthan the law applicable in developed nationsand thus the defence has been made available toprotect local as well as foreign producers.

In theory the defence has no place in strictproduct liability in which liability will bedetermined by judging the product and not thereasonableness of the producer's conduct. Thuswhether the producer did not know or could nothave known about the defect is irrelevant. On theother hand, it would be unjust to impose liabilityonthe producer who would be powerless to avoidliability since the defects were not capable ofbeing discovered at the time of production. Itis also feared that the incentive to be inventivewould be curtailed if liability were to be foundeven though the defects in the products were notreasonably discoverable, whereas innovationand technological change are very importantin reducing risks of modern developments.Furthermore there are risks in new products thatcannot be foreseen however careful the produceris, and that these are inevitable risks which thepublic must accept in the face of technologicaladvances. It appears that the consumer interest

in having new products put on the market atacceptable prices has to be balanced against theconsumer interest in seeing that the victims ofdefective products receive compensation fortheir injuries.

The defence has been raised by the defendantsin A and Others v National Blood Authority andOthers". They argued that the risk of bloodinfected by hepatitis C was unavoidable riskwhich was unable to be discovered by means ofaccessible information. However, the defencehas been given a very strict interpretation by thejudge and it was held that once the existence ofa risk of hepatitis infection in blood was known,the defence ceased to be available, even ifthe riskcould not be avoided. In other words, the defenceis only applied to cases of absolutely unknownand undiscoverable risks of defect in a product. Itshould be noted however, the decision is based onArticle 7(e) of the EC Directive which providesa defence where 'the state of scientific andtechnical knowledge at the time when he put theproduct into circulation was not such as to allowthe existence of the defects to be discovered.' Itclearly provides a narrow test based upon thesimple concept of discoverability. The Articleis not concerned at all with the conduct orknowledge of the individual producer.

Section 72(1)(d) of the CPA on the otherhand, introduces the less demanding conceptof expectancy as the phrase 'may reasonablybe expected' clearly adopts the standard ofreasonable discoverability." This may mean thatthe defendant will not be liable for his failureto discover the risk which is not reasonablydiscoverable and which therefore has not been

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guarded against. Based on the present wordingof s 72(1)( d), it is perhaps difficult to confinethe defence to cases of absolutely unknownand undiscoverable risk." However the burdenof proof is on the producer to establish that thedefect was unforeseeable and not reasonablydiscoverable while under his control on thebasis of the most advanced available accessiblescientific and technical knowledge.

Other Defences

In addition to specific defences under s 72( I), othergeneral defences under the law of negligence canalso be raised by the producer since a claim underPart X will be treated as a claim under the law oftort." Where damage is caused partly by a defectin the product and partly by the consumer's ownfault, the defence of contributory negligence maybe available. Notably, contributory negligenceis not strictly a defence but an apportionment ofliability." However, the defence must be pleadedand the burden of proof is on the defendant. Thedefence requires the defendant to prove on thebalance of probabilities that the plaintiff failedto take reasonable care for his own safety. It isparticularly relevant in cases involving the misuseof a product, disregard for any warn ing, notice orcontinued use of the product with knowledge ofits defect. It should however, be noted that thisdefence is closely connected with the issue ofcausation and the meaning of 'defective'. Thus,for example, if a product is rendered dangerousonly because it was handled in an improper orotherwise unforseeable manner, it is simply not'defective' in any relevant sense. On the contrary,if a passenger of a car who has failed to wear a

seat belt, suffers serious injury due to an accidentwhich was caused by a defective tyre, the questionof contributory negl igence may be raised.

Another possible defence under the tort ofnegligence for the producer is that the victimvoluntarily assumed the risk, generally knownas the defence ofvolenti nonfit injuria/" Unlikecontributory negligence, which only operatesto reduce damages according to the degree offault, volenti is a total defence. Nonetheless,in the context of product liability, this defencemay be raised in conjunction with a defenceof contributory negligence such as misuse of aproduct or the ignoring of warnings or instructions.However, for the defence to operate there must bea full appreciation of the existence and extent ofthe risk and a meaningful opportunity of avoidingit. Thus, a cigarette manufacturer can argue thata smoker who is suffering from lung cancerhas no action against him since the sufferer hasconsented to incur the risk by ignoring a worldwide warning on the effect of smoking.

Conclusion

Strict liability for defective under Part X of theCPA is undoubtedly a major legislative reformin the field of consumer protection generally,and product liability in particular. The rule hasbeen perceived as having made it easier forplaintiffs to prove their cases, as they no longerhave to prove fault by the producer. HoweverPart X obviously does not remove all barriers tosuccessful product liability claims. The cases sofar decided in the UK show that the main hurdleto win product liability battle is to prove thedefect in the product and the causal link between

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29 See s 12 of the Civil Law Act 1956.30 This maxim basically means 'to him who is willing no harm is done'.


the defect and the injury suffered. It appears thatproof of causation remains a difficulty as in manycases the evidence used in establishing causationis no different from that adduced by consumersin the past to establish fault. In addition, theavailability of certain defences may to someextent undermine the effectiveness of the strictliability scheme and consequently may turn awaythe aggrieved consumer whom the law originallyintends to protect.

Nonetheless, the unfavourable aspects ofthe strict liability rule for consumers may bejustified by the very basic nature of the liabilityitself which has never been intended to imposean absolute liability. Furthermore if one considersthat the bulk of the cost-would ultimately be borneby the public at large, it seems to be unjust andinappropriate social policy for a producer to beheld liable in a situation where he is powerlessto avoid liability. It must be remembered that theburden of proof is on the producer to establish anyof the relevant defences which may not be easyin all cases. There have not been many reportedcases brought under the UK Consumer ProtectionAct nearly eighteen years after its introduction.Malaysian consumers would probably take alonger period than that before realising theirrights and starting to enforce them. Furthermoremost claims under Part X need to be brought to theordinary court since the Tribunal for ConsumerClaims does not deal with cases of personal injuryor death which are the main concern of the strictliability rule." Without the availability of a classor multi-party action in Malaysia, it may not easyfor the victims of defective products to file a case.It appears that the question as to whether the lawis able to strike a balance between the interestsof consumers and the interests of the producersin the Malaysian context cannot be judged by

31 Section 99(3) of the CPA.

looking at the liability system per se. Thus theactual effect of the strict liability system on theconsumers as well as on the producers remainsto be seen.

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strict liability for defective products: balancing of interests...

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