Product Liability

Products Liability as Enterprise Liability

Japan's Product Liability Law was introduced on 1 July 1995. Engineers in Japan tend to maintain a negative attitude towards product liability (PL) laws because of the extreme examples of PL litigation cases presented in the US courts. The 'concept of defect' is a crucial aspect in PL litigation. In this paper, the warning, caution, and instruction defect, a common defect encountered with Japanese products, is discussed using examples found in the marketplace, with emphasis on how the particular structure of Japanese grammar affects this type of defect. The model cases are revised to a more effective form so that the warnings and cautions serve their main purpose, which is to draw the user's attention to the potential dangers first and afterwards to describe the handling prohibitions.

MALFUNCTION THEORY allows plaintiffs in a products liability case to prove the probability of a defect by eliminating normal causes of malfunctions, even without proving the specific existence of a product Plaintiffs have applied malfunction theory to devastating effect on the defense of a products liability case, which is already a plaintiff-friendly environment. Courts throughout the nation are utilizing and developing malfunction theory to relax, or even excuse proof of defect and causation in products liability cases. This article argues that malfunction theory poses a triple threat to defendants by: (i) removing the requirement that plaintiffs prove a specific product defect; (ii) relaxing the causation requirements that plaintiffs must show; and (iii) potentially allowing plaintiffs' experts to provide otherwise impermissibly unsupported opinions. However, at least one recent case provides the possibility that unsupported expert testimony presents the Achilles heel to this otherwise unbounded theory. I. Plaintiff-friendly Product Liability Law Product liability law essentially undid previous common law. Most notably, product liability law created a dangerous environment for any person operating in the stream of commerce by allowing claims against any defendant in the stream of commerce relative to the product with no privity requirement and without proof of fault. Courts also did away with the traditional requirement of proving fault, or negligence--allowing strict liability against any product seller. When neither privity of contract nor negligence is required, the burden often effectively shifts to defendants to figure out who is responsible for the harm allegedly caused to a plaintiff. Ordinarily in product liability cases in most jurisdictions, a plaintiff must prove that: a product was in a defective condition unreasonably dangerous to the consumer, the defect caused the injury, the defect existed at the time of sale, and the product was expected to and did reach the consumer without substantial change in condition. (2) The application of the malfunction theory to this already plaintiff-oriented body of law has the potential to expose defendants in the stream of commerce even further. Malfunction theory is being expanded in most jurisdictions, some in a very relaxed manner, to provide alternate ways in which plaintiffs may successfully bring a products liability case despite the lack of direct evidence of defect and/or causation due to factors such as destruction or loss of the product in question. Under varying circumstances in different jurisdictions, courts are permitting circumstantial evidence as the basis for a prima facie products liability case in the absence of direct evidence of defect, causation, or both. II. Malfunction Theory Basics A plaintiff in a product liability action may be able to establish a prima facie case by providing evidence of the nature of a product's malfunction under circumstances that give rise to an inference that the malfunction would not have occurred absent a defect existing at the time of sale. Product liability cases may arise out of a product malfunction that damages or completely destroys a product that is the basis of the products liability case. (3) As a result, plaintiff would not be able to produce direct evidence of a specific defect. The malfunction theory essentially allows a plaintiff to present circumstantial evidence of a defect or evidence of an unspecified dangerous condition when direct evidence is unavailable or there is insufficient evidence to identify the specific defect. Additionally, application of the malfunction theory allows the plaintiff to present circumstantial evidence that rules out reasonable secondary causes in lieu of direct evidence of causation. Given that the malfunction theory implicates permissible inferences for a fact-finder absent direct evidence, the theory essentially operates as a rule of evidence. …

The Product Liability Directive was given effect in the United Kingdom via Part I of the Consumer Protection Act 1987. In passing the Act, Parliament took the opportunity to legislate for both product liability and product safety, reinforcing the indisputable link between the civil law consequences and criminal law liability for defective products. Criminal product safety controls prohibit producers from placing unsafe goods on the market, while compensation under product liability occurs where defective goods have caused injuries to product users. However, this chapter only deals with civil liability under Part I of the 1987 Act, criminal law controls being beyond the remit of this text.

Background and Purpose: Consumers who suffer from injury or property damage due to the existence of a defect in a given product is entitled to bring a legal action in court based on product liability law provisions in Malaysia. This study aims to analyse the legal problems of strict civil liability in product liability law in Malaysia based on the Consumer Protection Act 1999 (Act 599) (hereinafter “CPA 1999”).
 
 Methodology: By applying a doctrinal approach based on qualitative methodology of legal research, this study involved a thorough analysis of the CPA 1999 as well as previous court cases. The findings of this study were analysed using content analysis and critical analysis methods in order to record the similarities and differences which exist, as well as to draw conclusions on the meaning and application of the said law.
 
 Findings: The findings prove that there are several weaknesses in the existing strict civil product liability provisions in Malaysia, which are still unresolved in terms of the meaning of product defect and proof of causation.
 
 Contribution: This paper recommends that any improvements on the legal provisions for strict civil liability under product liability law in Malaysia to be evaluated from a different perspective based on Islamic principles of product liability and the theory of Maqasid Syariah, which has rarely been analysed.
 
 Keywords: Causation, doctrinal, Maqasid Syariah, product liability, strict civil liability.
 
 Cite as: Mohd Shukri, M. H., Ismail, R., & Markom, R. (2020). A review of legal problems in Malaysian strict product liability law – Maqasid Syariah as a way forward. Journal of Nusantara Studies, 5(2), 239-260. http://dx.doi.org/10.24200/jonus.vol5iss2pp239-260

This paper studies the efficient definition of product defects for AI systems with autonomous capabilities. It argues that defining defects in product liability law is central to distributing responsibility between producers and users. The paper proposes aligning the standard for defect with the relative control over and awareness of product risk possessed by the producer and the user. AI systems disrupt the traditional balance of control and risk awareness between users and producers. The paper provides suggestions for defining AI product defects in a way that promotes an efficient allocation of liability in AI-related accidents. It assesses whether the recent EU policy proposal on product liability aligns with this approach.

PurposeAlmost 20 years ago one of the present authors wrote an article entitled “Product liability: a global problem”. The brief paper seeks to provide a summation of what has happened in the meantime.Design/methodology/approachThe article is a brief discussion of the issues: the first section comments on products liability outside Europe and the final part concludes with an overview of what happened in the UK and Europe.FindingsThe article finds that the EU Directive's approach to strict liability has become the most common influence on law reform around the globe and that there is still much uncertainty in Europe and the USA as to what the law of product liability actually is.Originality/valueThe paper illustrates how, for the foreseeable future, businesses may continue to be most concerned about product liability exposure in the USA.

This paper examines the legal implications of nanotechnology, focusing on consumer protection and product liability. It highlights how the precautionary principle guides regulatory and civil liability frameworks in managing scientific uncertainty and emerging risks. Emphasis is placed on transparency, labelling, and information disclosure as essential tools for informed consent and risk prevention taking into account the recent EU reforms, including the General Product Safety Regulation (EU) and the new Product Liability Directive (EU) 2024/2853. The study argues that precaution operates as a bridge between product safety regulation and civil liability, ensuring a dynamic balance between technological innovation and the protection of health, safety, and consumer trust in the nanotechnology era.

The growing integration of artificial intelligence (AI)-based brain–computer interface (BCI) systems into healthcare intensifies a fundamental legal question: who should bear responsibility for damage caused by adaptive technologies that directly interact with the human brain? Whilst the European Union’s new Product Liability Directive (2024/2853) represents a significant step towards modernising liability for digital products, it remains largely oriented towards identifiable technical defects and relatively stable products. This article examines AI-driven BCI systems through the lens of algorithmic normativity and introduces the concept of a Reflexive Normative Cascade to analyse how responsibility evolves from pre-legal normative expectations to societal experiential feedback and, potentially, to reactive legal crystallisation. It argues that although societal experience clearly articulates concerns relating to autonomy, mental integrity, and transparency, these insights are not always successfully translated into stable liability rules under the current product liability framework. In particular, damages arising from normative design choices embedded in algorithms, continuous post-market adaptation, and distributed responsibility chains expose persistent accountability gaps for both injured parties and producers. By situating the Product Liability Directive within this reflexive process, the article contends that liability for AI-driven BCIs cannot be fully addressed through static doctrinal tools alone and calls for a dynamic normative framework integrating transparency, traceability, and complementary insurance mechanisms.

This paper presents an analysis of the changing impact of products liability risk on various individuals, firms, and institutions in today's society. After defining products liability and products liability risk, the pendulum-like evolu tion of products liability law is documented. Then an analysis of some of the most important factors responsible for the recent increases in the frequency and severity of products liability litigation is presented. Several of these elements have appar ently combined to produce a synergistic increase in products- related lawsuits. These elements include recent development in the law of products liability, together with a newly emerging products claim consciousness, public concerns about product safety, and the plethora of old and new products in use today. Finally, the paper concludes with an analysis of the potential impact of enacting one or more of the many proposed solutions to the problem of products liability risk.

It is argued that supply chain liability could be based either on tort law or on contract law and – drawing on experience from product liability law – it is examined whether there is a basis for assuming that these two approaches might end up merging into one unified approach forming the basis of a new concept of ‘production liability’.

Under relevant Malaysian laws, manufacturers or distributors who falsely claim that their cosmetics are safe are subject to criminal penalties. The question arises as to whether the producers can be responsible for physical as well as emotional injury caused to the consumers of such products. This paper seeks to investigate the potential liability of the manufacturer and distributor of defective cosmetics under the product liability law, which generally aims to protect consumers from unsafe products. The paper concentrates on the provisions of strict liability for defective products under Section X of the Consumer Protection Act 1999. The main issues to be resolved are whether cosmetics containing harmful substances can be considered as 'defective' and what kind of injury can be recovered by the victims. This study's findings provide producers and suppliers with information regarding their civil liability for supplying presumably safe cosmetics and the consumer's ability to obtain redress for harm caused by cosmetics comprising harmful ingredients.

Everyone concerned in the field of product liability or insurance will know that the current product liability law begins with the European Community Directive on Liability for Defective Products of 1985, passed into English law by the Consumer Protection Act 1987, Part 1. Until the passing of the Consumer Protection Act in 1987 which began the modern law of product liability, most of the law was judge-made and developed by a series of extensions of existing principles. In product liability cases under the common law the duty of a manufacturer towards a consumer to take care is a fundamental precept. The duty to provide reasonably safe product information comprises primarily the duty to give accurate information about the way in which a product should be used and the risks and benefits attaching to it in each of its reasonably foreseeable uses according to the inherent characteristics of the product.

The tightening of product liability (PL) law and the growth of consumer demand for product safety make PL a critical issue of business management. In this paper, we establish an effective PL prevention plan by analyzing representative PL cases in Korea, the United States, and Japan. We consider the type of product, the type of defect, the cause of defects, and the results of PL lawsuits. Most PL problems are due to manufacturing defects. Damage and defects are uniformly distributed over various types of products. The analysis results indicate that we should not be limited to issues of product safety. We should also consider a responsible PL prevention plan that can protect consumers from risk of damage. In preventing design defects, we should give special consideration to the technical and legal aspects of a design review so that we can improve the conventional prevention plans. Manufacturing defects should be prevented through a product safety review tailored to the product characteristics. Moreover, we endeavor to prevent instruction defects by analyzing the characteristics of the environment in which a product is used. Copyright © 2010 John Wiley & Sons, Ltd.

Many have been bewitched, bedazzled, and bewildered in attempting to figure just how the principles of products liability should be applied to prescription drugs.1 Whether and how prescription drugs should be treated differently from other types of products has consumed more time and effort, and resulted in the gnashing of more teeth, than about any other particularized issue in all of American products liability law. In addition to featuring two prominent Restatement provisions – comment k to § 402A of the Restatement (Second) of Torts and § 6 of the more recent Restatement (Third) of Torts: Products Liability – the drug liability story wends through two of the most prominent cases in products liability law history: