Product Liability 2009 - Arnold & Porter LLP

Hong Kong
168
Lovells Hong Kong
Recalls of electrical products and food are governed by the
Electricity Ordinance and the Public Health and Municipal Services
Ordinance respectively. The respective governmental departments
may recall electrical products that do not meet prescribed safety
requirements under the Electrical Products (Safety) Regulation and
food that is considered to be unfit for human consumption.
Aside from mandatory recalls, the Government has issued
guidelines for manufacturers who wish to carry out a voluntary
recall of toys and children’s products, consumer goods, electrical
products, and food.
1.5 Do criminal sanctions apply to the supply of defective
products?
Yes. Criminal sanctions range from fines to the imprisonment of
company directors and managers.
2 Causation
2.1 Who has the burden of proving fault/defect and damage?
The burden of proving fault/defect and damage lies with the
claimant.
In a civil claim based on breach of contract, the claimant must prove
on a “balance of probabilities” that the defendant breached the
terms and conditions of the contract and that the claimant suffered
damages as a result of those breaches.
Similarly, in a civil claim for negligence, the claimant must prove
on “a balance of probabilities” that the defendant owed the claimant
a duty of care and that the defendant breached that duty resulting in
damages being sustained by the claimant. There may be cases
where the claimant is unable to produce sufficient evidence of the
negligence, for example, where the defective product has been
consumed or has disintegrated or where the evidence no longer
exists. In these situations, the claimant may rely on the doctrine of
res ipsa loquitur (which means in Latin, the thing speaks for itself)
to show that the defect or damage could only have been caused by
negligence on the part of the defendant.
Criminal proceedings may only be instigated by public enforcement
authorities and they have the burden of proving “beyond reasonable
doubt” that the party being prosecuted is guilty of a criminal
offence.
2.2 What test is applied for proof of causation? Is it enough
for the claimant to show that the defendant wrongly
exposed the claimant to an increased risk of a type of
injury known to be associated with the product, even if it
cannot be proved by the claimant that the injury would
not have arisen without such exposure?
First, the claimant must prove that “but for” the defendant’s
negligence, the claimant would not have sustained the loss or injury.
Causation is a question of fact for the judge to determine. Second,
the claimant must show that the loss or injury incurred is not, in law,
too remote a consequence of the defendant’s breach of duty.
2.3 What is the legal position if it cannot be established which
of several possible producers manufactured the defective
product? Does any form of market-share liability apply?
Failure on the part of the claimant to prove which of several
possible producers actually manufactured the defective product will
result in the claim being dismissed. Although this may cause
injustice to the claimant because often much of the evidence
required is within the knowledge of the defendant, at present there
is no recognised concept of “market-share” liability in Hong Kong.
2.4 Does a failure to warn give rise to liability and, if so, in
what circumstances? What information, advice and
warnings are taken into account: only information provided
directly to the injured party, or also information supplied to
an intermediary in the chain of supply between the
manufacturer and consumer? Does it make any difference
to the answer if the product can only be obtained through
the intermediary who owes a separate obligation to assess
the suitability of the product for the particular consumer,
e.g. a surgeon using a temporary or permanent medical
device, a doctor prescribing a medicine or a pharmacist
recommending a medicine? Is there any principle of
“learned intermediary” under your law pursuant to which
the supply of information to the learned intermediary
discharges the duty owed by the manufacturer to the
ultimate consumer to make available appropriate product
information?
For manufacturers and suppliers, a failure to warn may give rise to
liability in negligence as they owe a duty to take reasonable care to
provide adequate warnings and instructions. It will depend on the
circumstances of each case whether the warning given was
adequate to discharge the duty imposed. Some of the more
important factors that will be taken into account are the likelihood
and gravity of the potential danger to the consumer; the extent of
the information made available to any intermediaries and the
consumer and the practicality of providing the information to the
consumer. The principle of “learned intermediary” does exist under
Hong Kong law.
A failure to warn may also give rise to criminal liability under
statute. For instance, under the Consumer Goods Safety Ordinance,
the relevant statutory body can require the publication of warnings
about goods where the Commissioner reasonably believes that
those goods are unsafe. These warnings must also be given in both
English and Chinese. Failure to comply amounts to an offence.
The Smoking (Public Health) Ordinance provides that all tobacco
products sold to the general public must contain a health warning in
the prescribed manner otherwise an offence is committed.
3 Defences and Estoppel
3.1 What defences, if any, are available?
In addition to the defences that are available under the usual
principles of contract and tort law, the manufacturer or supplier may
also be able to avoid liability if they can show that: (1) the claimant
had knowledge of the defect, fully appreciated its risk and
voluntarily assumed such risk (the volenti non fit injuria defence);
or (2) the injury was attributed to the rare allergy or abnormal
sensitivity of the claimant which the manufacturer could not
reasonably have foreseen.
The defendant may also be able to reduce its liability if it can show
that the acts of the claimant contributed to the damage, for example,
if the claimant ignored the warnings or did not follow the
instructions when using the product.
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