Consumer Protection via Products Liability; is transformation needed?

Abstract

The issue of consumer protection is at the centre of the discussion in the present scenario in which economies are open and a wide variety of goods and services available in the marketplace for human consumption. Primarily, consumers are vulnerable since the legal protection given to consumers against manufacturers is not strong enough. Particularly, fatal and physical injuries such as deaths, deformities, permanent disabilities and illnesses caused by defective products involve a policy issue to be considered by a jurisdiction. 37 Secondly, it is very difficult to prove the nexus between the manufacturer of the product and the consumer at all times. Thirdly, modern rules of world trade monopolize evolving liability regimes. This is evident when analyzing the legal work of the international community on consumer rights. Still, it has only guide lines on consumer rights which have no legal effect, but merely provide an internationally recognized set of basic objectives. However, in general, many jurisdictions have taken steps to regularize internal trade and transactions of goods and services at the domestic level by the enactment of strict laws. Parliaments have approached the debated issue from two different angles. Firstly, UHFRJQL]LQJRIIHQFHVZKLFKGHULYHIURPFRPPDQGDQGFRQWUROWKHRU\ ,PSRVLQJµSURGXFWV OLDELOLW\¶ IRU GHIHFWive products on the part of the manufacturer is the second approach. The tendency of the modern jurisdictions is to incorporate both aspects into their regimes. Sri Lanka too has a major statute to regularize internal trade, consumer protection and other concerns that are consequential to this issue.38 At the same time several corresponding statutes are available.39 The objective of latter statutes are not per se consumer protection, however, these can be used as supplemental to the intended purpose. The intention of Parliament when introducing the CAAA was to focus only on issues that impact society at large, but not individual consumers. For this purpose, the CAAA has 36 Udapadie S. Liyanage, LL.B (Hons.), M.Phil, Attorney- at- Law, Senior Lecturer, Department of Private and Comparative Law, Faculty of Law, University of Colombo 37 See, Soft drink kills 11-year-old girl (18th February 2011) visit, print.dailymirror.lk/news/provincial-news/35974.html, visited on 08.03.2011 38 Consumer Affairs Authority Act No. 09 of 2003(CAAA) 39 i.e. Food Act No.26 of 1980, Sale of Goods Ordinance No. 11 of 1896, Telecommunication Regulatory Commissions Act No.27 of 1996, Cosmetic Devices and Drugs Act No. 27 of 1980, National Environmental Act No. 47 of 1980. 149 repealed several corresponding Acts which were in place and established a powerful Authority to deal with the debated issue. Also, it has recognized several offences relating to unfair trade practices. The doer will be punished in violation of these provisions of the CAAA.40 In line with this, the Authority can impose a fine and if he is proved guilty in a court he may be imprisoned for a period of time.41 Fines are collected to a fund that is used for the functions of the Authority. However, there is no provision to deal with product liability towards the damage caused to an ultimate victim although the damage is extremely significant.42 Other than making a complaint to the Authority, there is no remedy available to individual victims against manufacturers. The only remedy that is available to them is the delictual action in Sri Lanka.43 In this, products can be held liable RQO\LIWKHHOHPHQWRIµIDXOW¶LVSURYHGRQWKHSDUWRIWKHGHIHQGDQWPDQXIDFWXUHUZKRKDV no connection with the consumer.44 In fact, the burden of proof of fault of the manufacturer does not help the victim to redress the damage caused to him, but rather it only suppress and discourage litigation. This issue of damage is totally victim oriented and personalized. Therefore, in Sri Lanka the consumer is not protected in the real sense EHFDXVH WKHUH LV QR VWDWXWRU\ ODZ IRU WKH µUHFRYHU\ RI GDPDJH¶ FDXVHG E\ D GHIHFWLYH product. Hence, in this research it is intended to analyze firstly whether this burden could be averted and encourage consumers who suffered loss/damage by introducing a new legal criteria and secondly how it could be done