Proving Damages for an Unsafe Product

When consumers purchase and use products of any kind, there is a reasonable expectation that these products are safe for use. However, sometimes a defective or unsafe product makes it into the hands of a consumer and results in injuries or even death for the consumer, family members or others who use the product.

Product liability can be described as the responsibility and accountability that is placed on all parties involved in producing or selling a product, and the potential harm or damage caused by the product. Manufacturers, distributors and sellers can be found liable for injuries caused by a defective or dangerous product that causes harm to consumers.  Personal injury claims are filed every year relating to product liability. Understanding the types of claims, legal defenses, and precedents in product liability can help you with your personal injury case.

Types of Claims in Product Liability Cases

There are two general types of claims involving product liability.

(1) Breach of contract

There are some instances in which an agreement is formed when a consumer purchases a product. The Sale of Goods Act (SGA) inserts implications involving the condition of purchased products. The act of selling a product implies that it is in good working condition and safe for use. Therefore, a defective product creates a breach in contract, and an injured consumer may be able to hold the seller or manufacturer liable for injuries resulting from the defect.

(2) Negligence

Lawsuits involving negligence requires you to show that:

1. The manufacturer, distributor or seller owed you a “duty to care” to the consumer(s).
2. The manufacturer’s or seller’s actions fell short of the “standard of care” owed to you (i.e. the product was sold with a known defect).
3. The flaw or unsafe condition caused your injuries.

Under Health Canada, the Canada Consumer Product Safety Act regulates the sale of goods to consumers and strictly prohibits the sale of unsafe goods. Further, there are guidelines for manufacturers and retailers requiring them to report incidents involving unsafe products.

All manufacturers and sellers must report incidents involving a flaw or defect that either resulted in injury or has the potential to result in injury or negatively affect someone’s health.  Specifically, this includes any illnesses or injuries that required medical treatment, whether or not the harm was temporary or permanent.  The following are some of the reactions and injuries that must be reported:

• allergic reactions, which includes anaphylaxis
• problems with breathing, including suffocation, choking or asphyxiation
• physical harm to the external body, including cuts or burns
• internal injuries, including fractures, organ damage or internal bleeding
• poisoning
• convulsions
• sight or hearing loss
• loss of consciousness

Personal Injuries Due to Damaged/Defective Products

Consider the ramifications suffered by a manufacturer or distributer of defective products that caused serious, undue injuries to the consumer. Just as in any personal injury case, the responsible party can be held legally accountable and required to pay the cost of damages for losses resulting from an injury.

In the case of Stilwell v. World Kitchen, Inc., a man suffered serious injuries while hand washing a Visions Dutch Oven manufactured by World Kitchen, Inc. The oven shattered causing injuries to his right hand including a severed artery and nerve damage. The man underwent surgery but he never recovered full use of his right hand. He filed a claim against World Kitchen, Inc. and the Ontario Court of Appeal upheld the decision that the manufacturer was 75% liable for the damages caused by the defective oven, rewarding the claimant $1.1 million.

Common Defenses in Product Liability Claims

There are a number of defences that a manufacturer or retailer may utilize to protect themselves from liability, including, but not limited to:

• Compliance with Statutes and Standards – The flaws or defects in the product were made in complying with statutory guidelines or regulatory standards.
• Misuse of Product – The consumer suffered injuries while using the product in such a way that the product was not intended to be used.
• Assumption of Risk – There is apparent and inevitable risk of danger associated with the very use of the product. In such cases, courts are more likely to apportion the losses between the plaintiff and the defendant.
• Contributory Negligence – The plaintiff’s own actions contributed to the injuries they suffered as a result of the use of the product.  If successful, this defence may result in a reduction of the award to a plaintiff.

What Should You Do If You’ve Been Injured by a Defective Product?

Manufacturers understand their responsibilities and the consequences of personal injury claims resulting from defective products. This is why they are often equipped with product liability insurance and attorneys.

If you have sustained injuries and suspect that the cause is a defective product, you should immediately seek medical attention and keep a record of all medical treatment and expenses.  Do not dispose of the product as it may be useful evidence to prove your case.  Also retain your proof of purchase and product packaging, if you have them.  Photos of the product, scene of the injury and resulting injuries can also be used to support a claim for damages.

Winning a product liability claim for negligence requires proving that the product was defective and also, demonstrating the link between the defect and your injuries.  This may involve examination of the manufacturing and/or distribution process for a product to uncover the source of error or negligence that resulted in a dangerous product being sold to a consumer.    If you can provide evidence that an unsafe product caused your injuries, you are entitled to compensation for losses such as lost wages, medical and rehabilitation expenses, and pain and suffering.   

Consult with a product liability lawyer at the Injury Lawyers of Ontario (ILO) law group to learn about the strength of your case and/or to obtain experienced representation in a claim for product liability damages.