CONSUMER LAW : CONSUMER LAW by
Dr. Aspalella A. Rahman 1 Slide 2: INTRODUCTION
In 1962, J.F. Kennedy, (US President) had announced that there are 4 basic rights of a consumer – right to safety, right to be informed, right to choose and right to express ideas.
International Organization of Consumer Unions (IOCU) has added another 4 rights of consumer – right to basic needs, right to redress, right to consumer education and right a healthy environment. 2 Slide 3: Thus, there are 8 basic rights of consumer:-
1. right to basic needs
2. right to choose
3. right to be informed
4. right to safety
5. right to redress
6. right a healthy environment
7. right to consumer education
8. right to express ideas 3 Slide 4: RIGHTS AS A CONSUMER
1. Rights to Bacis Needs
Right to all the products and services of a
Daily basic needs that guarantee survival (adequate food, clothing, shelter, health care, education and sanitation) 4 Slide 5: 2. Rights to Choose
Right to access to a variety of products and services at competitive prices and in the case of monopolies, to have an assurance of satisfactorily quality and services at a fair price. 5 Slide 6: 3. Right to Be Informed
Right to obtain adequate, accurate and precise information and facts about the product services that customer want to consume in order to act wisely and responsibly to make the right choice or decision.
Right to be protected form misleading or inaccurate publicity material, whether included in advertising, labeling, packaging or other means. (prohibited activities by the Act) 6 Slide 7: Among prohibited activities by Act
S 9 – Misleading Conduct
S 10 - False and Misleading Representation
S 12 - Misleading indication as to price
S 13 - Bait advertising
S 14 – Gift, prizes, free offers without intent to provide or charge higher price or reduce quality or quantity
S 15 – Claim that goods are limited 7 Slide 8: 4. Right to Safety
Right to be protected against product, services and manufacturing processes that may expose health and in life danger.
S 23 – Goods or services unsafe and injurious to the public are prohibited.
S 24 – Goods or services that do not comply with the safety provisions should not be imported. 8 Slide 9: 5. Right to redress
Right to a fair settlement of just claims which includes the right to receive compensation for misrepresentation of shoddy goods or unsatisfactorily services and the availability of legal aid or redress for small claims.
Freedom to buy or to be assured that the product or services is contain through right channel based on the right price. 9 Slide 10: 6. Right to A Healthy Environment
Right to a physical environment that will enhance the quality of life which includes the need to protect and improve the environment for present and future generations. 10 Slide 11: 7. Right to Consumer Education
Right to acquire the knowledge and skills needed for taking action to influence factors which affect customer decisions in order to be informed consumer throughout life. 11 Slide 12: Steps taken by the government:-
Consumer education at school
Ministry of Domestic Trade and Consumer Affairs (Kementerian Dalam Negeri dan Hal Ehwal Pengguna) was introduced 27 Oct 1990. 12 Slide 13: 8. Right to Express Ideas
Right to express ideas individually or representatively.
Thus, consumer’s interest will be considered in underlining not only the government policies but also private companies product policies. 13 CONSUMER PROTECTION IN MALAYSIA : Consumer Protection Act 1999 (CPA)
CPA provides specifically for consumer protection in relation to the supply of goods and services.
Before CPA, there was no particular statute applying to consumers in respect of supply of goods and services.
The Sales of Goods Act 1957 provides only minimal protection coz it applies to all commercial transactions entered into by consumers and non consumers. 14 CONSUMER PROTECTION IN MALAYSIA Scope of CPA : Generally, CPA provides:
Protection to consumers against misleading and deceptive conduct, false representation and unfair practice;
Implied guarantees in respect of supply of goods or services;
Product liability in respect of defects;
Adequate remedies in the event of defective goods or inadequate services being supplied to consumers. 15 Scope of CPA Cont’ : CPA also provides the establishment of a Tribunal for Consumer Claims with powers to adjudicate in respect of consumer claims and a public enforcement agency in the form of a Controller of Consumer Affairs. 16 Cont’ Definition : s3 CPA- consumer means a person who acquires good or services of a kind ordinarily acquired for personal, domestic or household use. It excludes a person who acquires goods or services in the course of a business for resale or manufacture. 17 Definition PRODUCT LIABILITY : Part X CPA provides provisions relating to product liability.
As such, a person who is injured or whose property is damaged by a defective product has a right of compensation against the producer and importer.
It is designed to ensure that persons responsible for putting defective products into circulation are liable to compensate those who suffer loss because of the defect, regardless whether there is contractual relationship or fault. 18 PRODUCT LIABILITY Cont’ : Before CPA came into force, consumer can claim for defective product via:
Claim for damages for breach of contract if the parties are in a contractual relationship.
H/e the action is limited to the retailer coz privity of contract principle.
Claim in tort for negligence.
H/e the plaintiff must prove the manufacturer’s fault (which is normally difficult to prove). 19 Cont’ s.68 CPA- Liability for Defective Products : It imposes direct liability for defective products on producers (i.e. manufacturer) and importers of goods.
It is not depend on the contract or tort.
As such, any person who is injured or suffers damages as a consequence of defective products is entitled to pursue the statutory remedy.
This is additional to the rights that may arise out of contract or tort. 20 s.68 CPA- Liability for Defective Products Cont; : s68(1)-persons liable for defective products include:
The person who, by putting his name on the product or using a trademark or other in relation to the product, has held himself out to be the producer; and
The importer (who has imported the product into Malaysia in the course of his or her business). 21 Cont; Cont; : s71- Prohibition on exclusion from liability.
The liability of a person under Part X may not be limited or excluded by a contract term, notice or other provision. 22 Cont; Meaning of defective product : Art. 6 EC Product Liability Directive.
“1. A product is defective when it does not provide the safety which a person is entitled to expect, taking all circumstances into account, including:
The presentation of the product;
The use to which it could reasonably be expected that the product would be put;
The time when the product was put into circulation… 23 Meaning of defective product Cont’ : 2. A product shall not be considered defective for the sole reason that a better product is subsequently put into circulation.”
s67 (1) CPA- Meaning of ‘defect’.
A product is defective if it does not provide the level of safety that the community generally is entitled to expect.
The level of safety will vary from case to case and it is ultimately for the court to determine whether a product is defective. 24 Cont’ Factors to be considered by the court (s67(2) CPA) : How and why the product has been marketed;
The use of any mark in relation to it;
Instruction for, or warnings about, doing or refraining from doing anything with or in relation to the product;
What might reasonably be expected to be done with it;
The time when it was supplied. 25 Factors to be considered by the court (s67(2) CPA) Burden of Proof : The consumer bears the burden of proving that the product is defective and that he or she has suffered injury, loss or damage in consequence of the defect. 26 Burden of Proof Statutory Defence : s72 CPA provides statutory defence for Defence.
The D must show that:
The defect is attributable to compliance with any requirement imposed under any written law;
He or she did not at any time supply the defective product;
The defect did not exist in the product at the relevant time; 27 Statutory Defence Cont; : d)The defect that arises could not have been discovered at the time the manufacturer supplied the goods because there was insufficient scientific or technical knowledge at that time;
e) The product was a component of a finished product and the defect attributable only to the design of the finished goods, or the packaging, instructions or warnings included in those finished goods. 28 Cont; Tribunal for Consumer Claims : The Tribunal for Consumer Claims is an independent body established under Section 85, Part XII of the Consumer Protection Act 1999.
The Tribunal operates under the Ministry of Domestic Trade, Co-operatives and Consumerism.
The primary objective of establishing the Tribunal is to provide an alternative forum for consumers to file claims in a simple, inexpensive and speedy manner. 29 Tribunal for Consumer Claims Jurisdiction of Tribunal : The Tribunal shall hear and determine :-
a) any claim in respect of any matter within its jurisdiction as provided under the Act;
b) where the total amount claimed does not exceed RM25,000.00; and
c) any other matter prescribed by the Minister by order published in the Gazette.
The Chairman, Deputy Chairman or any other member of the Tribunal selected by the Chairman, sitting alone shall exercise the jurisdiction of the Tribunal. 30 Jurisdiction of Tribunal Limitation of Jurisdiction : The Tribunal shall have no jurisdiction in respect of any claim :-
a) arising from personal injury or death;
b) for the recovery of land, or any estate or interest in land;
c) in which the title to any land, or any estate or interest in land, or any franchise, is in question; and
d) in which there is a dispute concerning -
i. the entitlement of any person under a will or settlement or on any intestacy;
ii. good will;
iii. any chose in action;
iv. any trade secret or other intellectual property.
e) where any other Tribunal has been established under any other written law to hear and determine claims on matters that are under the jurisdiction of that other Tribunal.
The jurisdiction of the Tribunal shall be limited to a claim that is based on a cause of action which accrues within three years of the claim. 31 Limitation of Jurisdiction Types of Claims : A consumer can lodge a claim with the Tribunal claiming for any loss suffered on any matter concerning his interests as a consumer under this Act arising from –
A false or misleading conduct, false representation or unfair practice.
Safety of goods and services .
The right against a supplier in connection with any of the guarantees implied by the Act . 32 Types of Claims Cont; : d) The right against a supplier in connection with any guarantee implied by the Act in relation to services.
e) The right against a manufacturer in connection with any express guarantee on supply of goods.
f) The right against a manufacturer in connection with any guarantee implied by the Act in respect of any good. 33 Cont; Procedures : The procedure relating to the filing, registration and hearing of claims before the Tribunal are provided in Part XII of the Act as well as the Consumer Protection (The Tribunal for Consumer Claims) Regulations 1999 which were made by the Minister pursuant to Section 122 of the Act. 34 Procedures Award : The Tribunal shall, where practicable, make its award within sixty days from the first day of the hearing before the Tribunal.
At a hearing the Tribunal may make any one or more of the following awards -
a) that a party to the proceedings pays money to any other party;
b) that goods be supplied or re-supplied;
c) that goods supplied or re-supplied to the consumer be replaced or repaired;
d) that the price or other consideration paid or supplied by the consumer or any other person be refunded to the consumer or that person; 35 Award Cont; : e) that a party comply with the guarantee;
f) that money be awarded to compensate for any loss or damage suffered by the claimant;
g) that the contract be varied or set aside, wholly or in part;
h) that costs (not exceeding RM200.00) to or against any part be paid;
i) that interest is paid on any sum or monetary award at a rate not exceeding eight per centum per annum;
j) that the claim is dismissed. 36 Cont; Enforcement of Award : Every agreed settlement recorded by the Tribunal and every award made by the Tribunal shall be final and binding on all parties to the proceedings.
Every award made by the Tribunal shall be deemed to be an order of a Magistrate's Court and be enforced accordingly by any party to the proceedings in a Magistrate's Court having jurisdiction in the place where the award was made. 37 Enforcement of Award Criminal Penalty : Any person who after fourteen days fails to comply with an award made by the Tribunal commits an offence and shall on conviction -a) be liable to a fine not exceeding five thousand ringgit (RM 5,000.00) or to imprisonment for a term not exceeding two years or both;b) in the case of a continuing offence, the offender shall, in addition to the penalties above, be liable to a fine not exceeding one thousand ringgit (RM 1,000.00) for each day or part of a day during which the offence continues after conviction. 38 Criminal Penalty Judicial Review : Under section 116(1) of the Consumer Protection Act 1999, every award made by the Tribunal is final and binding on all parties to the proceedings. However, any party dissatisfied with an award of the Tribunal can file an Application for Judicial Review to the High Court for the High Court to reconsider the award. The Tribunal is not involved in the process of Judicial Review. 39 Judicial Review