In a recent case heard at the Kuala Lumpur High Court, a supplier of faulty intraocular lenses is absolved of liability for damage caused to the vision of 2 cataract patients as there was no contractual relationship between the parties on which an action can be founded.
The Plaintiffs, that is the 2 cataract patients, in this case claimed that the Defendant, Swissmed, who was the agent of a Dutch-based manufacturer, Oculentis BV, had supplied advanced Mplus X intraocular lenses with implied guarantees that the lenses were of acceptable quality, fit for purpose, and reasonably safe for use. The Plaintiffs claimed that as a result of the failure of the lenses, they had suffered from permanent eyesight problems including visual haze, blurry vision, loss of vision acuity, poor night vision and tiredness when reading.
The Plaintiffs sought damages, including aggravated, exemplary and special damages, and costs.
The High Court Judge in his ruling said that the 2 Plaintiffs in their respective suits, had failed to show they had a valid and enforceable contract against the Defendant.
The Dutch-based manufacturer, Oculentis BV was originally named as the second Defendant. However, the High court in an earlier judgment struck out Oculentis BV as a Defendant in the suit, after the firm, which has faced multiple suits relating to its faulty lenses over the last seven years, was found to have been bankrupt.
The Plaintiffs however maintained their respective suits against the Defendant, Swissmed, seeking compensation after their vision deteriorated following the insertion of lenses which the manufacturer later admitted were faulty.
The court decided to hear both suits together, as the facts and subject matter were identical.
In its broad grounds of judgment released last week, the High Court dismissed the Plaintiffs’ claim for three causes of action based on Contract, the Consumer Protection Act 1999, and the Law of Negligence. The High Court stated that the Plaintiffs could not bring a case for breach of contract as neither of them had a contract with Swissmed to begin with.
According to the High Court, lack of a contract also means the Plaintiffs cannot bring an action founded on the Consumer Protection Act. Under the Consumer Protection Act, the first thing a claimant must establish is a contractual relationship between the parties. Only then can the consumer come forward and claim the protection under the Act. The claim founded in negligence also failed as the Plaintiffs had failed to identify what duty the supplier of the lenses had owed to the Plaintiffs. The High Court ordered the Plaintiffs to pay costs to the Defendant, Swissmed.
It is understood that the Plaintiffs intend to appeal the decision to the Court of Appeal.
