21/11/2017
Section 67. Meaning of "defect"
(1) Subject to subsections (2) and (3), there is a defect in a product for the purposes of this Part if the safety of the product is not such as a person is generally entitled to expect.
(2) In determining what a person is generally entitled to expect in relation to a product, all relevant circumstances shall be taken into account including-
(a) the manner in which, and the 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 with or in relation to the product;
(e) what may reasonably be expected to be done with, or in relation to, the product; and
(f) the time when the product was supplied by its producer to another person.
(3) Nothing in this section shall require a defect to be inferred from the mere fact that the safety of a product which is subsequently supplied is greater than the safety of the product in question.
(4) For the purposes of this section, "safety", in relation to a product, shall include-
(a) safety with respect to products comprised therein;
(b) safety in the context of risk of damage to property; and
(c) safety in the context of risk of death or personal injury.
Section 68. Liability for defective products
(1) Where any damage is caused wholly or partly by a defect in a product, the following persons shall be liable for the damage:
(a) the producer of the product;
(b) the person who, by putting his name on the product or using a trade mark or other distinguishing mark in relation to the product, has held himself out to be the producer of the product; and
(c) the person who has, in the course of his business, imported the product into Malaysia in order to supply it to another person.
(2) Where damage is caused wholly or partly by a defect in a product, the person who suffered the damage may within a reasonable period after the damage occurs request the supplier to identify any or all of the persons referred to in subsection (1), whether or not he is or they are still in existence.
(3) For the purpose, of subsection (2), it is immaterial whether the supplier supplied the defective product to-
(a) the person who suffered the damage;
(b) the producer of a product in which the defective product is comprised therein; or
(c) any other person. 32 of 50
(4) Where the supplier fails to comply with a request under subsection (2) within a reasonable time having regard to all the circumstances, the supplier shall be held liable for the loss or damage.
(5) This section shall not apply to a person in respect of any defect in agricultural produce if the only supply of the agricultural produce by the person to another person was at a time when the agricultural produce has not undergone any industrial process.
(6) Where two or more persons are liable under this Part for the same damage, their liability shall be joint and several.
(7) This section shall be without prejudice to any liability arising otherwise than under this Part.
(8) The Minister may, by order published in the Gazette, declare that no proceeding shall be brought before the Tribunal or any court in respect of any defect in any goods after the expiry of such period calculated from the date of manufacture of such goods or class or both of such goods as may be specified in the order; and upon the making of such declaration, no proceeding shall be brought in respect of such defect before the Tribunal or any court.
Section 69. Extent of liability for loss or damage
(1) Where any damage is caused wholly or partly by a defect in a product, the liability of the person liable for the damage under section 68 shall not include the loss of or damage to-
(a) the defective product;
(b) the whole or any part of the product which comprises the defective product; or
(c) any property which at the time it is lost or damaged is not-
(i) of a description of property ordinarily intended for private use, occupation or consumption; and
(ii) intended by the person suffering the loss or damage mainly for his own private use, occupation or consumption.
(2) For the purposes of paragraph (1)(c), loss or damage to property shall be deemed to have occurred at the earliest time at which a person with an interest in the property has knowledge of the material facts about the loss or damage.
(3) For the purposes of subsection (2)-
(a) the material facts about any loss of or damage to any property are such facts about the loss or damage as would lead a reasonable person with an interest in the property to consider the loss or damage sufficiently serious to justify his instituting proceedings for damages against a defendant who does not dispute liability and is able to satisfy a judgment against him;
b) a person's knowledge includes knowledge which he may reasonably be expected to acquire-
(i) from facts observable or ascertainable by him; or
(ii) from facts ascertainable by him with the help of appropriate expert advice which it is reasonable for him to seek: Provided that a person shall not be deemed to have knowledge of a fact ascertainable by him only with the help of expert advice unless he has failed to take all reasonable steps to obtain and where appropriate, to act on that advice.
