Personal injury claims from the use of unsafe products

What happens when we use an unsafe product that results in unexpected injury?

Everyday millions of Canadians buy and use a wide variety of products, including household appliances, vehicles, tools and machinery, food, pharmaceutical drugs and children’s toys. With every purchased product, there is an expectation that the manufacturers and sellers of the product have done everything they can to ensure their safety. If there are inherent risks that come with the use of the product, such as with many pharmaceutical drugs, we assume that these have been minimized as much as possible and communicated clearly to us, as consumers. Unfortunately, this is not always the case.

When an individual is hurt by the use of a product that turns out to be unsafe or dangerous in some way, they can file a personal injury claim to be compensated for their financial losses and pain and suffering. This kind of legal issue falls under the category of product liability, which refers to the liability of any and all parties involved in the manufacture or sale of a product and the resulting damage it caused. This can include the manufacturers, distributors and sellers of the product.

Product liability law focuses on defect (the physical state of the product) and negligence (the manufacturer’s conduct pertaining to production). In a product liability claim, the claimant must show that they were harmed as a direct result of using the product and that it was manufactured with a known flaw. While pharmaceutical drugs and motor vehicles get the bulk of media attention in product liability cases, any number of products may be unsafe, including toys, food and beverages, medical devices, tools, recreational equipment and building products.

There are three distinct categories of product defects for which manufacturers may be held liable. These include:

• Manufacturing – These are defects that arose in the production and manufacture of the product. Perhaps something was missed or accidentally added in the assembly/factory line that should not have been there.
• Flawed Design – These are defects that arose in the design of the product. This is one of the reasons most companies do research and testing before releasing a product, so they can recognize any aspects of the product that may be unsafe or a danger to consumers.
• Inadequate Warnings – These are issues that result from a lack of proper warning from the manufacturers about the use of a product. These types of issues tend to commonly be associated with pharmaceutical products.

With respect to the manufacturer’s liability as it pertains to unsafe products, the Supreme Court of Canada has declared that “Manufacturers owe a duty to consumers of their products to see that there are no defects in manufacture which are likely to give rise to injury in the ordinary course of use.” Given a knowledge of the inherent risk in the ordinary use of a product, there is a duty not to manufacture in the defective way when there are other more reasonable alternatives available. With regards to the issue of inadequate warnings, the Supreme Court has ruled that… “The manufacturer’s duty to warn is a continuing duty, requiring manufacturers to warn not only of dangers known at the time of sale, but also of dangers discovered after the product has been sold and delivered ...” These warnings are also required to be communicated clearly and reasonably.

Regarding negligence in the design of the product, a landmark decision was made in the Ontario case of Nicholson et al. v. John Deere et al. where the plaintiff’s home caught on fire after she tried to fill the gas tank on a garden tractor, which was manufactured by the John Deere Company. It was determined that the gas tank had been assembled too close to the battery in the tractor, thus causing the friction that caused the fire. The flaw in the tractor was well known to John Deere through a number of previously reported incidents and lawsuits, but John Deere argued that there were warnings printed on the fuel-tank decal and instruction manual. What is problematic about these warnings is that many tractors are bought second hand, as was the Nicholson tractor, with no instruction manual or decals to warn of the danger. In this case, the judge found John Deere liable for the Nicholson’s damages. It was resolved that even if a manufacturer becomes aware of a danger several years after marketing, they have a duty to warn users in a way that leaves nothing to chance.

Product liability legislation is constantly being amended to respond to identified safety concerns and new innovations. In July 2015, Health Canada published guidelines to help retailers and others understand their obligations under the Canada Consumer Product Safety Act, 2010, for reporting safety incidents for the products they produce or sell. Industry Guide on Mandatory Reporting under the Canada Consumer Product Safety Act specifies that ‘the industry’, which includes manufacturers, importers, sellers and distributors, must report incidents involving a defect or characteristic that resulted or has a reasonable potential to result in serious injury, death or a significant adverse effect on a person’s health. There is also an obligation to report missing, incorrect or inadequate instructions or labels.

An ‘incident’ of a potentially unsafe product can result from information received under various circumstances (including those below) where there is a reasonable potential for injury.

• product complaints or returns
• product liability claims or lawsuits
• reports from the supply chain
• expert reports
• test reports
• scientific studies or information
• government reports or standards
• product recalls

Potential risks to safety and health that must be reported include any injury or ill effect that requires medical treatment, including both temporary and permanent injuries. Examples of harmful effects provided in the Guide include:

• external physical harm, including serious lacerations or burns
• threats to breathing, including strangling, suffocation, choking and asphyxiation
• internal injury, such as broken bones, internal bleeding or injury to an organ
• allergic reactions, including anaphylaxis
• poisoning
• convulsions
• loss of sight or hearing
• loss of consciousness

The Guide also specifies the timelines, content requirements and the procedures for reporting incidents, for sellers, importers, distributors and manufacturers. Some incident reports must be directed to others involved in the supply chain for a specific product, as well as to Health Canada.

In product liability claims, claimants must prove that they were specifically harmed by the unsafe product. The manufacturer or distributer may argue that their product was not the cause of the injury or that even if it was, they complied with all the existing safety standards and guidelines and are consequently not liable. Other defenses may include that the victim knew the dangers and risks of the products and nevertheless willingly used it. This is a common argument in product liability claims for pharmaceutical drugs. It may also be argued that the injured person misused the product and therefore they are not liable for any injuries.

Proving negligence requires proof of defect and identifying a link between the defect and injury. In the process of building a strong case for negligence, a product negligence lawyer must examine numerous aspects of the production and/or distribution process, and these vary with the nature of the product.

Our experience and expertise as product liability lawyers enables the Injury Lawyers of Ontario (ILO) law team to provide our clients with strong representation in product liability cases.

We have successfully obtained compensation for many victims of negligence in the manufacturing or sale of dangerous or defective products, and well understand the process of finding and proving fault in these cases. If you or someone you love was injured by the use of an unsafe product, do not hesitate to consult with one of our accomplished lawyers.