Translation
LIABILITY FOR DAMAGES EMERGING FROM
UNSAFE PRODUCT ACT,
B.E. 2551 (2008)
BHUMIBOL ADULYADEJ, REX.
Given on the 13th Day of February B.E. 2551;
Being the 63rd Year of the Present Reign.
His Majesty King Bhumibol Adulyadej
is graciously pleased to proclaim that:
Whereas it is expedient to have the
law on liability for damages emerging from unsafe product;
This Act contains certain provisions
in relation to the restriction of right and liberty of person, in respect of
which section 29 in
conjunction with section 43 of the Constitution of the Kingdom of Thailand, so
permit by virtue of law;
Be it, therefore, enacted by the
King, by and with the advice and consent of the National Legislative Assembly,
as follows:
Section
1. This Act is called the “Liability
for Damages Emerging from Unsafe Product Act, B.E. 2551 (2008)”.
Section
2. This Act shall come into force as
from the day following the date of its publication in the Government Gazette.[1]
Section 3. If the provisions of other laws specifically
prescribe the liability for damagess emerging from unsafe product and such
provisions provide more protection to the injured person than the provisions of
this Act, such provisions shall be prevailed.
Section
4. In this Act:
“Product” mean all sorts
of immovable property produced or imported for sale, including agricultural
product and electricity, except for the product as prescribed by the
Ministerial Regulation;
“Agricultural product”
means product produced through any kind of such agriculture as paddy farming,
farming, gardening, livestock rearing, aquatic animal rearing, sericulture, lac
culture, mushroom cultivation, but not including natural product;
“Production” means make,
mix, blend, improvement,
assembly, invent, transformation, change, modification, selection,
distribution, freezing or radiation as well as any other act done in similar
character;
“Injured person” means a
person who gets damages emerging from unsafe product;
“Damages” means damages
emerging from unsafe product irrespective of whether there is damages to life,
body, health, sanitary, mental or property, but not including damages to such
unsafe product itself;
“Mental damages” means
hurt, pain, fearfulness, concern, grief, disgrace or any other mental damages
with similar nature;
“Unsafe product” means a
product which causes or may cause damages by its production or design or by
failure to provide, or providing false or unclear, method of use, maintenance,
warning or information related thereto with regard to condition of such product
as well as normal method of use and maintenance of such product which may be
expected;
“Sell” means sale,
distribute, dispose of or exchange for commercial purpose, including rent out,
hire purchase, provision as well as giving offer, induce or exhibition show for
such purpose;
“Import” means bring or
order the product into the Kingdom for sale;
“Entrepreneur” means
(1) a producer or a
person ordering the production of the product;
(2) an importer of the
product;
(3) a seller of product in
which its producer, the person ordering the production or importer is unable to
identified;
(4) a person who uses
his name, trade name, trade mark, sign, statement or expresses by whatever
means which may make another person to understand that he is a producer, a
person who orders the production or an importer of the product.
Section 5. All entrepreneurs shall be liable
collectively to the injured person for damages emerging from unsafe product
sold to the consumer without regard to their willfulness or negligence.
Section 6. In calling for collective liability under
section 5, the injured person or the person under section 10 shall have to
prove that the injured person is damaged from the product of the entrepreneur through
normal use or maintenance of such product, but he is not required to prove that
such damages emerging from any act of any entrepreneur.
Section 7. The entrepreneur shall not be liable to damages
emerging from unsafe product if he is able to prove that:
(1) such product is not
unsafe product;
(2) the injured person
knows that such product is unsafe product; or
(3) the damages caused
by the using method or maintenance which is not comply with correct and clear method of use,
maintenance, warning or information related thereto as provided by the entrepreneur.
Section 8. The producer who produces the product for,
and under the order of, another person shall not be liable to damages if he is
able to prove that the unsafe cause of the product emerging from design of
product prepared by the person who makes production order or from the
compliance with the order of such person, and that unsafe cause is
unforeseeable, and may not be foreseeable, by the producer.
The producer of any part of the product shall
not be liable to damages if he is able to prove that the unsafe cause of the
product emerging from design or assembly of the product or the determination of
method of use, maintenance, warning or information related thereto as provided by the producer.
Section 9. Any agreement between the consumer and the
entrepreneur made prior to the emerging of damages to, and any ex parte notification
or notice made by the entrepreneur to, waive or limit liability of the
entrepreneur on damages emerging from unsafe product shall not be defense as
waiver or limitation of liability for damages.
For the purpose of this
section, the consumer shall have the same meaning as “Consumer” as defined
under the law on consumer protection.
Section 10. The Consumer Protection Committee and
association and foundation certified by the Consumer Protection Committee under
the law on consumer protection shall have the power to bring the case to the
Court for and on behalf of the injured person.
In this case, the provisions relating to class action under that law
shall apply mutatis mutandis.
The class action made
for and on behalf of the injured person under paragraph one shall be exempted
from all fees other than fee to be paid when the case becomes final.
Section 11. Other than the compensation for wrongful act
as prescribed by the Civil and Commercial Code, the Court shall have the power
to determine compensation for damages in accordance with the following rules:
(1) compensation for
mental damages resulting from body, health or sanitary damages of the injured
person. If the injured person is death, husband, wife, ascendant or descendant
of that person shall be entitled to compensation for mental damages;
(2) if it appears that
the entrepreneur produces, imports or sells any product by knowing that such
product is unsafe or failure to know that upon gross negligent, or the
entrepreneur knows that such product is unsafe after production, import or
sale, but he fails to provide appropriate measures to prevent the occurrence of
damages, the Court shall have the power to order the entrepreneur to pay
punitive damages in addition to actual damages determined by the Court. The punitive damages to be determined shall
be the amount at the Court thinks fit, with regard to such circumstances as
degree of damages of the injured person, knowledge of the entrepreneur on
unsafe cause of the product, the period the entrepreneur conceals the unsafe
cause of damages of the product, reaction of the entrepreneur when he acknowledges
that the product is unsafe, benefit of the entrepreneur, financial status of
the entrepreneur, relief of damages provided by the entrepreneur as well as
injured person’s participation in the emerging of such damages, but the total
amount of the punitive damages shall not exceeding two times of the actual damages.
Section 12. The claim for compensation of damages emerging
from unsafe product under this Act shall be expired after the expiration of
three years as from the date the injured person knows of his damages and the
liable entrepreneur or ten years as from the date such product has been sold.
In the case where damages
to live, body, health or sanitary resulting from accumulation of any substance intake
into the body of the injured person or the presence of damages takes long
period of time, the injured person or the person under section 10 shall claim
for compensation of damages within three years as from the date the injured
person knows of such damages and the liable entrepreneur, but not exceeding ten
years as from the date such damages has known to him.
Section 13. The negotiation on compensation between the
entrepreneur and the injured person or the person under section 10, the
prescription shall stay until any party cancels such negotiation.
Section 14. The provisions of this Act shall not override
the right of the injured person to claim compensation for damages under other
laws.
Section 15. The product sold to the consumer prior to the
date this Act comes into force shall not be subjected to this Act.
Section 16. The Prime Minister shall have charge and
control of the execution of this Act and shall have the power to issue the
Ministerial Regulations for the execution of this Act
Such Ministerial
Regulations shall come into force upon their publication in the Government
Gazette.
Countersigned by:
General Surayud Chulanont
Prime Minister
[1]Published in the Government Gazette, Vol. 125, Part 36Kor,
dated 20th February B.E. 2551 (2008).
(c) 2014 Pakorn Nilprapunt <pakorn.nilprapunt@gmail.com>
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