Generally, product liability cases are heard in the same manner as most other civil cases, that is before a judge in the state courts or the Supreme Court of Singapore.
The court before which the claim will be brought at first instance is determined based on the quantum of the claim, as set out below:
- not exceeding S$60,000: magistrates' court;
- between S$60,000 and S$250,000: district court; and
- above $250,000: High Court.
Any decisions made in these courts may subsequently be appealed to a higher court.
An exception arises where the claim is below S$10,000 and can, therefore, be heard before the Small Claims Tribunal. However, this limit of S$10,000 can be increased to S$20,000 if both the MDS and claimant consent to the increase in writing.ii Burden of proof
The burden of proof is generally on the party that initiates an action against a MDS. For instance, to claim that the implied contractual condition that the goods are of satisfactory quality has been breached, the claimant has to show how the goods in question are not of satisfactory quality.
However, should a claimant seek to rely on Section 12B(1) of the CPFTA as a cause of action, the lemon laws provide a presumption that goods that do not conform to the applicable contract at any time within six months of the date of delivery did not so conform as at the date of delivery, and it will be for the MDS to prove otherwise.iii DefencesGeneral defence: expiry of limitation period
Generally, a claimant may not bring an action founded on a contract or on tort after the expiration of six years from the date on which the cause of action accrued.
However, for a negligence action for damages, different rules apply:
- where the damages claimed consist of or include damages in respect of personal injuries to the plaintiff or any other person, an action may be brought within the later of:
- three years of the date on which the cause of action accrued; or
- three years of the earliest date on which the plaintiff has the knowledge required for bringing an action for damages in respect of the relevant injury; and
- for damages other than personal injuries, an action may be brought within the later of:
- six years of the date on which the cause of action accrued; or
- three years of the earliest date on which the plaintiff or any person in whom the cause of action was vested first had both the knowledge required for bringing an action for damages in respect of the relevant damage and a right to bring such an action.
Meanwhile, for an individual seeking to sue for unfair practices under Section 6 of the CPFTA, the action should be within two years of:
- the date of the occurrence of the most recent material event on which the action is based; or
- the earliest date on which the consumer had knowledge that the supplier had engaged in the unfair practice to which the action relates.
If a claimant delays making a claim, the court may exercise its discretion in dismissing the claim, even though the claim was made within the limitation period. The key factors that the court may consider are the length of the delay and whether the acts done during that time would cause injustice to the defendant.Exemption or limitation of liability clauses
An MDS might seek to exclude liability for any contractual breaches or torts committed by including exclusion clauses in its contracts. However, an exclusion clause cannot exclude or restrict the MDS's liability for any death or personal injury resulting from its negligent actions. As for other losses or damage that arise, the MDS would only be able to exclude or restrict its liability with a contractual clause, provided that the clause satisfies the requirement of reasonableness. In addition, as against a person dealing as a consumer, a seller cannot rely on an exclusion clause to exclude or restrict the liability that arises from the breach of an undertaking as to the conformity of goods with their descriptions or samples, or as to their quality or fitness for a particular purpose.Claims under the CPFTA
A seller may argue that the consumer did not act reasonably in the circumstances and therefore the actions of the seller cannot be considered as an unfair practice. If a consumer unreasonably relies on a product advertising claim that is mere puff, for example, 'drink X gives you wings', the seller of the product cannot be considered as having engaged in an unfair practice.Tort of negligence
A manufacturer may assert that the claimant had either expressly or implicitly accepted the risk of harm associated with the manufacturer's conduct. However, the manufacturer must prove that the consumer had full knowledge and understanding of the said risk, that the consumer had voluntarily assumed that risk and that the risk that he or she assumed was the one that occurred.
In addition, a manufacturer may assert the partial defence of contributory negligence in a situation where the losses or harm suffered by the claimant was partly owing to the claimant's own fault. In such a situation, the court may reduce damages accordingly as the court thinks just and equitable given his or her share of responsibility for the losses or harm suffered.iv Personal jurisdiction
In Singapore, personal jurisdiction can be categorised under 'general civil jurisdiction' and 'specific civil jurisdiction'.General civil jurisdiction
An MDS is subject to the legal authority of the Singapore courts' jurisdiction if:
- the MDS has been served with a writ or other originating process in Singapore or outside Singapore in the manner prescribed by the Rules of Court; or
- the MDS has submitted to the High Court's jurisdiction.
An MDS that is a corporate entity may be subject to the legal authority of the Singapore courts' jurisdiction if the MDS was incorporated in Singapore, and service was effected on the MDS at its registered address.
Conversely, if the MDS was not incorporated in Singapore, it first needs to be present within Singapore and then receive service of the claimant's originating process for the MDS to be under the Singapore courts' jurisdiction.Forum non conveniens
The Singapore courts generally uphold choice of law and jurisdiction clauses in contracts and will apply the principle of forum non conveniens to determine if Singapore is the appropriate forum to have the matter heard.v Expert witnesses
Where there arises a need for an expert's opinion in a matter, the court may at any time, on its own volition or on the application of a party to a dispute, appoint an independent expert. The expert should have scientific, technical or other specialised knowledge based on his or her training, study or experience. This knowledge should be connected with the questions that he or she has been asked to address and be something that the court is likely to derive assistance from.
If more than one such question arises, two or more such experts may be appointed to inquire and report upon any question of fact or opinion that does not involve a question of law or of construction. However, the court may limit the number of expert witnesses who may be called at the trial.vi Discovery
There are two key methods of discovery in civil actions initiated before the Singapore courts, namely discovery through requests for the production of documents and discovery through interrogatories.Request for the production of documentsGeneral discovery
The court may at any time order any party to a cause or matter to give discovery by making and serving on any other party a list of documents that are or have been in its possession, custody or power.
This list of documents comprises documents that:
- are or have been in the other party's possession, custody or power, and on which the party relies or will rely; and
- could adversely affect the party's own case, adversely affect the other party's case or support another party's case.
In either case, discovery must be necessary for disposing fairly of the cause or matter or for saving costs.
After granting such an order, the court retains the discretion on whether to release or modify the undertaking. Most often, it will only release or modify the undertaking in special circumstances and where the release or modification will not occasion injustice to the person giving discovery.Specific discovery
To supplement the process of general discovery, specific discovery is available in cases where there are documents that fall within the scope of general discovery but have not been disclosed to the other party. The court may at any time, on the application of either party to a cause or matter, make an order requiring any other party to make an affidavit stating whether any document or any class of document specified or described in the application is, or has at any time been, in its possession, custody or power, and if not then in its possession, custody or power, when it parted with it and what has become of it.
Besides general and specific discovery, a party may apply for discovery before action or even discovery against a non-party. These are, however, exceptional situations that require a party to show why it is just for the court to grant such an application.Interrogatories
A party to any cause or matter may apply to the court for an order giving it leave to serve on any other party interrogatories relating to any matter in question between that party and another party in the cause or matter. The interrogatories should be necessary either for disposing fairly of the cause or matter, or for saving cost.
The court may grant an order to administer interrogatories only if the party gives security for the costs of the person against whom the order is made, or on such other terms as the court thinks just. If the court is not satisfied that interrogatories are necessary, or are necessary at that stage of the cause or matter, the court may dismiss or adjourn the application, and shall in any case refuse to make such an order.vii ApportionmentRegulatory obligations
If the products in question are medical devices and therapeutic products, the existing product registrant on the HSA's register will be held liable by the HSA for any defective products. Contractual arrangements may be made between the successor company and the previous registrant to apportion risk.Tortious claims
The following considerations will apply to claims in tort.Joint liability
A party that authorises, procures or instigates the commission of a wrong may be held jointly liable with the party that actually committed the wrong. Accordingly, if a director of a manufacturing company, for instance, authorises, procures or instigates the company to be negligent in the preparation of a product or to be negligent or fraudulent in the making of representations to a consumer, the director can be held liable for his actions. In TV Media Pte Ltd v. De Cruz Andrea Heidi and Another Appeal, one of the defendants was held to have directed, authorised and procured a company's negligence because of his involvement in all the company's significant dealings with third parties, as well as his absolute control of the company.
Meanwhile, a person who participates in a common design or joint enterprise in the commission of a tort may also be held liable for his or her actions. 'Common design' refers to a shared intention that is manifested either through an express or an implied agreement.Several liability
There may be situations where, for instance, a manufacturer negligently produces a defective good, a seller then makes a fraudulent or negligent misrepresentation to the claimant regarding the same good and both actions lead to the same damage to the claimant. In such cases, both the manufacturer and the seller can be held severally liable for the losses and damage suffered by the claimant through a tortious action.Vicarious liability
To impose vicarious liability on the MDS because of an individual's wrong:
- there must be an employer–employee relationship between the MDS and the individual;
- the individual must have committed a tort; and
- the individual's tort must have been so closely connected with his or her employment that it is fair and just that the MDS should be held vicariously liable for the individual's tort.
First, to determine if there is a close connection, the court would take into account factors including, but not limited to, the opportunity that the MDS afforded the individual to abuse his or her power and the extent to which the wrongful act may have furthered the MDS's aims.
Second, to decide if it is fair and just to impose vicarious liability, the court would take into account all relevant circumstances. This includes policy considerations such as the provision of compensation for innocent victims and the deterrence of future harm against employers to reduce the incidents of accidents and tortious behaviour by their employees.
Once vicarious liability is established, the MDS can be held liable for the losses and damage arising from the individual's tort. The MDS ultimately may not have to bear the liability if the MDS had previously sought an indemnity from its employee.viii Mass tort actions
Where numerous identifiable persons have the same interest in a proceeding, the proceeding may be begun and, unless the court otherwise orders, continued by or against any one or more of them as representing all or as representing all except one or more of them. Any judgment or order subsequently given would then be binding on all the persons as representing those whom the claimants sue. Such actions help to ensure that all interested parties are represented without being joined as parties, so that the dispute in the suit may be finally determined.ix DamagesBreach of contract
Where an MDS breaches a contract with the claimant, the court will compensate the claimant with damages for the losses that he or she has suffered as a result. In particular, the consumer may, in many situations, elect between expectation damages and reliance damages, though these damages are subject to proof. Expectation damages are damages to put the consumer in the position that he or she would have been in had the contract been performed. Where a good is defective, a consumer may claim for the diminution in market value of the good owing to the defect, or the cost of repairing the good. Conversely, reliance damages are based on the expenses that the claimant incurred in reliance on the MDS's promise to perform its obligations.
An exception to the freedom to elect what kind of damages to receive is where expectation damages are hard to quantify or are too speculative. In such a situation, the consumer may receive reliance damages instead.Claims under the CPFTA
The damages claimable under the CPFTA in respect of an unfair trade practice are subject to a limit of S$30,000. Similarly, where the claim is not for money, but for a remedy or relief in respect of the subject matter, the value of the claim should not exceed S$30,000.Tort of negligence
If a claimant is physically injured by a negligent act of the MDS, he or she may claim damages for both pecuniary and non-pecuniary losses. With regard to pecuniary losses, the court will award damages that would put the claimant in the position as if the injury had not been sustained. This may include (present and future) medical expense, loss of future income, future transport costs and future nursing care and nursing home expenses. With regard to non-pecuniary losses, the court may award damages for the claimant's loss of amenities and for pain and suffering.Misrepresentation
If the court finds the MDS liable for fraudulent misrepresentation, the court may award all losses flowing directly from the claimant's reliance upon the fraudulent misrepresentation, regardless of whether or not the loss was foreseeable (and including all consequential losses as well). Similarly, the MDS would be liable for the same type of damages if it had made a negligent misrepresentation to a claimant that led to the claimant suffering losses. This is unless the claimant had reasonable ground to believe and did believe up to the time the contract was made that the facts represented were true. If the MDS is found liable for innocent misrepresentation, the court may also order damages in lieu of rescission.