A contractual agreement can limit liability and preclude a tortious duty of care in professional relationships.

[2] The plaintiffs claim was a straight forward claim for goods sold and delivered. It was not in dispute that the goods that the plaintiff had agreed to manufacture for the defendant had been delivered to the defendant and that the price of the goods had not yet been paid by the defendant. As the basic facts giving rise to the claim were not in dispute, I entered judgment for the plaintiff in accordance with para 10 of its statement of claim.

[3] While the defendant did not deny having received the goods in question, it claimed that the plaintiff was negligent in including in the repellent formulation ingredients that were pesticides and which required registration under the applicable law. This negligent act, it was contended, resulted in losses being sustained by the defendant. The defendants counterclaim exceeded the amount of the plaintiffs claim.

Material Background Facts

[4] The material background facts of this case were as follows.

[5] The defendant was contracted to supply mosquito repellent in connection with a program sponsored by the Malaysian Ministry of Science, Technology and Innovation. This program involved the distribution of 100,000 dengue control kits. The defendant possessed the know-how relating to the use of an extract from the wild tomato plant as a non-toxic insect repellent, and had engaged the plaintiff to manufacture a mosquito repellent lotion that was to be included in such kits.

[6] The parties commenced discussions in 2012. They entered into two agreements: a Mutual Nondisclosure Agreement on 6 June 2012 and Materials Transfer Agreement on 11 June 2012. These agreements were intended to (among others) preserve the confidentiality of proprietary information and materials that to be transferred between the parties. These agreements do not, however, govern any of the matters in dispute between the parties.

[7] The goods had been provided pursuant to two quotations dated 25 February 2015 and 27 November 2015. Under the contractual terms of the sale and purchase of the goods, any complaint from the defendant as the purchaser must be lodged within seven days of receipt of delivery of the goods. Although no such complaint was made by the defendant, the defendant nonetheless contended that it was entitled to raise the counterclaim, for the fact that the counterclaim was not premised on the contract of purchase, but rather premised in tort.

[8] After having been supplied with the mosquito repellent that had been manufactured by the plaintiff, the defendant was summoned by the Pesticides Board regarding the inclusion of methylisothiazolinone (referred to here as "MIT") and rosemary oil in the repellent lotion (which was known as Denguard Dengue Defence Lotion). These two compounds are listed in the First Schedule to the Pesticides Act 1974 and required registration for inclusion into any consumer product. No such registration had been obtained. Furthermore, the inclusion of these compounds would have been contrary to the defendants own claim that the Denguard lotion contained only natural and non-toxic substances.

[9] As events turned out, MIT had not been included in the ingredients of the Denguard lotion after all. The containers had been mislabelled. The defendant incurred additional production costs for the reprinting of additional labels for the products that were packaged in 100ml tubes. It was advanced in submissions by counsel for the defendant that the mislabelling of the tubes was the result of the plaintiffs negligence.

[10] On the issue of the inclusion of rosemary oil into the Denguard lotion, the defendant contended that this too was the result of the plaintiffs negligence.

Issues

[11]