The Manufacturer’s Duty to Warn: A
Canadian Perspective†
Bruce
Churchill-Smith, Q.C.
I.
Introduction
The onset of the twentieth century witnessed the mass production and
consumption of goods. Instances of
personal injury and property damage have steadily increased with our increased
reliance on manufactured products.
Consumer protection was initiated through government regulation of the
production and handling of consumer goods.
Despite increases in legislative controls, consumers continue to suffer
personal injury, property damage, and economic loss from the use of both
ordinary, everyday products and products that are recognized as hazardous. When such loss occurs, consumers have two
general avenues for compensation: contract law and tort law. This area of the law is referred to as
“products liability.”[1] The mass production and consumption of
consumer goods presented a new challenge to tort law in particular, and has
resulted in a considerable expansion of the duty of care in negligence actions. The following is a summary of the state of
products liability law in
II.
Liability in Contract
If a contractual relationship exists between plaintiff and defendant, the
plaintiff may pursue its action in contract.
This cause of action is most commonly advanced against the supplier or
distributor of the product, as privity of contract often does not exist between
a consumer and manufacturer. A consumer
that has purchased a defective product may have a remedy based on the seller’s
breach of express or implied terms of the purchase contract. Implied warranties of reasonable fitness and
of merchantable quality have been developed at common law to protect consumers
from defective products. In addition to
the common law, each province has legislation that implies certain conditions
in contracts for the sale of goods.[2] A condition of reasonable fitness is implied
when a consumer expressly or impliedly makes known to the seller the purpose
for which the goods are to be used and the consumer substantially relies on the
seller's skill or judgment. The implied
condition that the goods are of merchantable quality is somewhat wider in
scope. There must be a sale by
description for the condition to be implied.
Once a breach of the implied warranty is found, the consumer will
succeed without proof of negligence.
If there is no contractual relationship between the parties, the law of
tort is the only avenue of recovery for the consumer who has suffered loss.
III.
Liability in Tort
In a products liability action, the plaintiff must prove the following
elements: the defendant owed a legal duty of care to the plaintiff; the product
was defective or flawed; the defendant failed to meet the requisite standard of
care; and the defect or flaw caused the plaintiff’s harm. In contrast to a contract action, a tort
action merely requires a relationship of sufficient proximity between the two
parties that it can reasonably be said that one owed a duty of care to the
other.[3] Products liability law has generally
recognized three categories of negligence, for which a manufacturer may be
liable for loss suffered by a consumer: (1) design; (2) manufacture; and (3)
warnings. The first category involves
products with a feature, which is known, or is later discovered, to be
inherently flawed or dangerous. The
second category involves defects in the production process itself. The third category involves products that
require warnings with respect to their inherent dangers or instructions as to
their safe and proper use. A product may
be designed and manufactured with appropriate care, but if it contains
inadequate warnings with respect to foreseeable dangers, the manufacturer may
nonetheless be liable.
IV.
The Duty to Warn
The duty to warn may arise in cases involving both defectively
manufactured or designed products as well as reasonably manufactured products
that function in the manner intended, yet have resulted in harm to the
consumer. As such, the duty to warn is a
flexible and comprehensive concept. A
manufacturer is required to warn of all foreseeable risks associated with the
use of its product to a wide range of individuals including, but not limited to,
the actual purchaser of the goods. The scope of this category of negligence has
led to a fear that this duty may result in strict liability for harm suffered
by consumers and that manufacturers are effectively being placed in the role of
insurers for their products.
The duty to warn seeks to equalize the knowledge imbalance between the
manufacturer and the consumer. It
promotes personal autonomy in the marketplace and assists in accident
prevention. A manufacturer may provide
information concerning known defects or non-obvious risks associated with the
product, directions for its safe use, as well as instructions for treatment in
the event of an accident. These warnings
have the potential to avoid accidents altogether or to reduce the extent of the
harm if an accident does occur. The duty
to warn provides consumers with the knowledge to make informed choices in the
marketplace and to appropriately manage the risks associated with an advanced
consumer society.[4]
In some instances, warnings are required by statute. The Food and Drugs Act[5] and the
Hazardous Products Act[6]
regulate the production and distribution of potentially dangerous consumer
goods in
Warning: This set contains chemicals that may be harmful if misused. Read the information in the instruction manual. If splashed in the eyes, or on skin, flush thoroughly with water. Get medical attention immediately if splashed in eyes. Not to be used by children except under adult supervision. Not recommended for children under 12 years of age.
Stiff
penalties may be imposed for violations of the Act. Any individual, including an officer or
director of a corporation, that contravenes the Act or its regulations may be
liable for a fine up to one million dollars or to imprisonment for a term of
not more than two years.[8]
V.
Parties Owing a Duty of Care
In an action alleging breach of a duty to warn, the court must determine
whether the manufacturer had a duty to warn of the risk that materialized and
whether that duty was breached in the circumstances of the case. A duty will be owed to the plaintiff if there
is a relationship of sufficient proximity between the parties. Manufacturers have a duty to protect
consumers from the reasonably foreseeable risks associated with the use of
their products.[9] As a result, when a consumer suffers damages
as a result of a product defect, the courts generally find a prima facie relationship of sufficient
proximity between the consumer and the manufacturer of the defective
product. The duty of care to protect
consumers from reasonably foreseeable harm, however, has been applied beyond
manufacturers. The courts have also
imposed a duty of care on individuals involved with the distribution of the
product, such as assemblers, distributors and suppliers. In addition, repairers, installers, and
individuals who recommend a product for use may have a duty to warn the
consumer of hazards of which they are aware.
A wholesaler or distributor may owe a duty to warn, even though they did
not participate in the actual manufacture of the product. However, not all distributors will be liable
for defective goods. It will depend on
the circumstances of the case, including the nature and extent of the
distributor’s involvement with the product, the feasibility of product testing
or intermediate examination of the goods, and the part played by the
distributor in promoting its use. A
distributor has a duty, however, to warn of product defects or dangers of which
it has knowledge and to inform the purchaser of any instructions for use or
warnings that have been received from the manufacturer. In McEvoy
v. Ford Motor Co.,[10]
James McEvoy was killed when his Ford pickup truck ran over him due to a defect
in the vehicle’s transmission. The court
found that there was an unusually close business relationship between the
manufacturer and the distributor. The
distributor was held liable, as it was aware of complaints concerning the
transmissions but failed to take steps to warn customers of the defect by
taking measures such as placing warning decals on the vehicles or mailing a warning
letter to purchasers of the product.
In Pack v. Warner (County) No. 5,[11]
the plaintiff, a rancher, raised cattle for breeding. The plaintiff requested that the defendant,
Michelson, of the Agricultural Services Board of Warner County, spray his cattle
for lice. The county purchased a
chemical from the defendant distributor.
An employee of the distributor recommended the product as the best
chemical for lice control. As a result
of the treatment, the cattle developed organo-phosphate poisoning and were no
longer suitable for breeding. The
distributor was found negligent and liable to the plaintiff. It had recommended the product for use in a
way not suggested or recommended on the label without warning that it could be
dangerous. Also it did not make
sufficient inquiries of the manufacturer to ascertain if the chemical was
suitable for such a purpose.
A repairer or installer may have a duty to warn of a design or
manufacturing defect or inherent danger of which it is, or should be,
aware. In Nicholson v. John Deere Ltd.,[12]
the manufacturer of a riding lawn mower placed the gas tank in close
proximity to the battery, creating a risk of fire. The plaintiffs purchased the mower at an
auction, but had taken it to the defendant dealer for repairs on several
occasions. The manufacturer subsequently
created a battery cover safety kit and implemented a program to advise users of
the risk of fire and explosion, which included sending letters to territory
managers and area service managers informing them of the program. The dealers were urged to have their
customers install the kit. Although the
defendant dealer performed repairs on several occasions, it returned a
hazardous piece of equipment to the plaintiffs without carrying out the
manufacturer’s program or warning the plaintiffs of the risk. The dealer was found liable.
VI.
Parties to Whom a Duty of Care is Owed
The category of individuals to whom the duty to warn may be owed is
extremely broad. In general, a duty to
warn is owed not only to consumers, but also to anyone that is contemplated as
a user or handler of the product. The
duty may also extend to unknown third parties, if it is reasonably foreseeable
that they may be adversely affected by the use of the product. In the seminal case of M’Alister (Donoghue) v. Stevenson,[13]
the individual who suffered loss was not the purchaser but a gratuitous
recipient of the product. In Nicholson, the plaintiffs were not the original purchasers of the
product, having purchased the mower at an auction. While the instruction manual and the warning
decals that accompanied the product were not included in the resale, the court
held that the manufacturer still owed a duty to the plaintiffs to ensure they
were aware of the risks inherent in the product.
If a manufacturer or distributor warns a customer that a product is not
suitable for a particular use, it will generally have fulfilled its duty to the
customer. However, if the product is
released with knowledge that the warning will be disregarded, the manufacturer
or distributor may have fulfilled its duty of care to the customer, but may
still be held liable for foreseeable injury to third parties. In Murphy
v. D & B Holdings Ltd.,[14]
Good-Wear sold re-treaded tires to Pash knowing that Pash intended to mount the
tires on the front wheels of a truck for which they were not suitable. Good-Wear knew that the business carried on
by Pash would impose greater loads on the tires than the tires were capable of
bearing safely and that the truck would be driven on public highways. One of the tires failed on the highway
causing an accident, which demolished an oncoming car, killing three of its
occupants. The Nova Scotia Court of
Appeal held that Good-Wear owed a duty to other users of the highway who would
likely be adversely affected by Pash's intended use of the tires.
In certain circumstances, a manufacturer may satisfy its duty to the
consumer by warning a learned intermediary of the risks inherent in the use of
the product. This principal is
applicable where a product is highly technical in nature and will be used only
under the supervision of experts or where the consumer would not realistically
receive a direct warning from the manufacturer.
In such cases, an intermediate inspection of the product is anticipated
and the consumer places primary reliance on the judgment of the learned
intermediary, rather than the manufacturer.
This principle does not relieve the manufacturer of the duty to warn the
consumer. The manufacturer is simply
allowed to fulfill its duty by providing the relevant information to the
learned intermediary. However,
manufacturers cannot escape liability by arguing that the intermediary would
not have passed the warning on to the consumer had it been provided. In Hollis,
the plaintiff underwent breast implant surgery on the advice of her
surgeon. The plaintiff’s physician did
not warn her of the risks of post-surgical complications or the possibility
that the implants might rupture. The
breast implants ruptured, and the plaintiff underwent a double mastectomy. The court held that the manufacturer was
entitled to warn the physician concerning the risk of rupture, without warning
the consumer directly. However, the court
noted that the learned intermediary rule presumes that the intermediary is
fully apprised of the risks, and is only effective when the manufacturer has
taken adequate steps to ensure that the intermediary’s knowledge of the risk
approximates its own.
VII.
The Scope of the Duty to Warn
The duty to warn encompasses dangers that are reasonably foreseeable and
is a continuing duty that survives the sale of the product. Reasonably foreseeable dangers are those that
are known, or ought reasonably to be known, to the parties involved in the
manufacture or distribution of the product.
If the court finds that the risk that materialized was not reasonably
foreseeable, the defendant may escape liability for the failure to warn.
In Allard v. Manahan,[15]
Mr. Allard was struck on the head and killed by a nail from a power tool that
he had rented from the distributor. It
was alleged that the distributor, Manahan, failed to give adequate warning of
the risk involved in operating the tool without the use of a special
guard. None of the witnesses had ever
seen or heard of an accident of the type that occurred. The universal practice was to use a standard
guard only. It was apparent after the
accident that the standard guard could not have prevented the accident that occurred. The court held that the risk that
materialized was not a danger of a type or kind that anyone in the trade had
foreseen, so the distributor was not liable.
The court has, in some instances, stretched the principle of
foreseeability in order to compensate victims, particularly when the product is
found to be inherently hazardous. The
supplier of material for padded cells was found liable for failure to warn in Williams v. New Brunswick, Saint John.[16] In that case, a prisoner in a cell set a fire
that spread through a short term holding facility, killing twenty-one
prisoners. The defendant, Chubb,
designed and supplied the materials for the facility, including shock absorbent
padding for the cell walls, which it covered with a heavy reinforced
material. The combustion of the padding
produced dense black smoke, hampering rescue efforts. The evidence supported the contention that
the fire resulted from an open flame.
Chubb argued that it was not foreseeable that a prisoner with both the
means and inclination to get through the outer covering and ignite the padding
would be placed in a padded cell by the police.
The court disagreed, and held that Chubb had every reason to foresee the
violent, anti-social
behavior of inmates confined in padded
cells including the ignition of fires and that it was negligent in failing to
warn of the dangerous properties of the padding.
Manufacturers must also ensure that the packaging, as distinct from the
product, does not create additional foreseeable risk to consumers. In Rae
v. T. Eaton Co. (Maritimes),[17]
a child was playing with a discarded can containing artificial snow. When the nozzle of the can became clogged,
the child resorted to banging the can against a concrete wall. The can exploded, and the child’s eye was
badly injured and subsequently removed.
The court found that the manufacturer was not negligent in failing to
warn of the possibility of explosion because the risk was not reasonably
foreseeable. In Stewart v. Lepage’s Inc.,[18]
the plaintiff was injured when a tin of glue exploded. The manufacturer was aware that the glue
caused a gas to form when contained in a closed tin or can, causing a danger of
explosion. The manufacturer did not warn
consumers of the danger and was held liable.
The scope of the duty to warn has also been extended to include those
dangers from a reasonably foreseeable misuse of the product. The Alberta Court of Appeal in Lem v. Barotto Sports Ltd.[19]
concluded that the manufacturer has a duty to warn of the potential misuse of a
product that might result in harm to the consumer, but only reasonably
foreseeable misuse. The plaintiff’s
claim involved a shot shell-reloading machine, which was in no way
defective. The plaintiff had been
adequately instructed in the use of the product, but had failed to follow the
instructions. The product was
accompanied by a manual, which gave instructions for the proper use of the
machine as well as specific aspects of potential misuse. The plaintiff did not read the manual, and
the court held that the plaintiff could not complain that he did not have
sufficient information because that information had in fact been provided to
him. The court also found that the
sequence of faults by which the injuries resulted were so fortuitous as to be
beyond the range of foreseeable results of misuse.
A manufacturer's duty to warn does not terminate with the sale of a
product. It is a continuing duty that
requires the manufacturer to warn the consumer of inherent risks and dangers
that are discovered even after the product has been released on the market. In Rivtow
Marine Ltd. v. Washington Iron Works,[20]
the plaintiff was a charterer of a log barge that was fit with two cranes. During one of the busiest seasons of the
year, the barge was ordered back for inspection and repairs because an
identical crane had collapsed on another barge, killing its operator. The manufacturer and distributor were held
liable, as neither company warned the plaintiff of the potential danger and
need for repair. Ritchie J. stated:
In my opinion the knowledge of the danger involved in the continued use
of these cranes for the purpose for which they were designed carried with it a
duty to warn those to whom the cranes had been supplied and this duty arose at
the moment when the respondents or either of them became seized with the
knowledge.[21]
VIII.
The Adequacy of the Warning
Manufacturers are required to communicate clearly the precise risk inherent in the product and to inform the user of the extent or gravity of the risk. The court will assess the adequacy of the warning; was it fair and reasonable in all the circumstances of the case? The more foreseeable the circumstances and the greater the risk of harm, the greater the obligation on the manufacturer to provide specific and detailed warnings.
In Lambert v. Lastoplex Chemicals
Co.,[22]
the plaintiff purchased a fast drying lacquer sealer manufactured by
Lastoplex. He intended to use the
product to seal a floor he was installing in his home. The room was in the basement and was separated
from the utility room by a plywood wall and fireplace. The utility room enclosed a natural gas
furnace and water heater, both of which had pilot lights. The plaintiff turned down the thermostat, and
when he had completed most of the floor he saw a line of flame advancing
towards him; then an explosion occurred.
The cause of the fire was the contact of vapors from the lacquer sealer
with the pilot lights in the utility room.
The container included several warnings and labels. They warned that the
product was inflammable and must be kept away from open flame. A lacquer sealer sold by a competitor,
however, contained a more explicit warning that specifically mentioned the
danger associated with pilot lights. The
court found the defendant manufacturer liable for failure to warn. Laskin J. stated:
Where manufactured products
are put on the market for ultimate purchase and use by the general public and
carry danger (in this case, by reason of high inflammability), although put to
the use for which they were intended, the manufacturer, knowing of their
hazardous nature, has a duty to specify the attendant dangers, which it must be
taken to appreciate in a detail not known to the ordinary consumer or user.[23]
The Ontario Court of Appeal in Buchan
v. Ortho Pharmaceutical (Canada) Ltd.,[24]
expanded on the precise content of the duty.
A warning must be communicated clearly in a manner that informs the user
of the extent and nature of the risk and should be commensurate with the
gravity of the danger. The explicitness
of the warning will vary with the danger inherent in the ordinary use of the
product. A general warning will not
suffice if the product is hazardous.
Known risks must be specifically addressed, and the explicitness required
will vary with the extent of the danger.
The warning must communicate not only the likelihood of the risk
materializing, but also the severity of the consequences in the event of an
accident. In Meilleur v. U.N.I.-Crete Canada Ltd.,[25] the plaintiff was
splashed in the eyes with a chemical, causing permanent blindness. Prior to the use of the chemical on the site,
the distributor gave a demonstration as to its proper use. The employees were warned of the risks and
that they should wear eyeglasses or a face shield when using the product. The distributor stressed the need to have
water present at all times for flushing or washing of the face and eyes in the
event of an accident. A brochure was
also provided that repeated this information.
The court held that although the brochure was very good, the distributor
had failed in its duty. The distributor
should have demonstrated emergency procedures and did not impress the extreme
urgency of treatment and the seriousness of injuries that could occur. The information provided did not warn of the
risk of blindness. The court also found
that the manufacturer of the product did not affix a proper warning label to
the chemical containers. There was a
label designed for caustic materials, but it was not affixed to the
containers. The container did not convey
a sufficient degree of danger, or the urgency of taking immediate action in the
event of an accident.
The presentation as well as the content of the warning will be reviewed
to determine whether the size, color and design of the warning are sufficient
to impart the risk to the consumer. In LeBlanc v. Marson Canada Inc.,[26]
the plaintiff was injured when a plastic tube of liquid hardener ruptured. The court held that the warning was not
sufficiently “arresting” or “imposing.”
It was placed in small print and commenced with warnings as to the
flammability of the product and its proper manner of storage, which were the
least of the dangers to the ultimate consumer.
The manufacturer failed to give instructions for getting access to the
contents of the tube in a safe manner.[27]
IX.
The Requisite Standard of Care
Canadian courts have sought to distinguish products liability in Canada
from that in the United States, which imposes strict liability for defective
products.[28] In practice, however, the courts have imposed
a standard of care in some cases that approximates absolute liability,
particularly with respect to medical and food products, as well as hazardous
goods. A manufacturer is required to
take reasonable care, although the standard of care required will vary
depending on the circumstances of the case.
The primary user of the product, the character of the product, and its
capacity to do harm are considerations that are factored into the appropriate
standard of care. In practice, courts
often disregard the conduct of the manufacturer, reasonable or otherwise, and
focus instead on the nature of the product.[29] Therefore, despite extensive measures taken
by manufacturers to alleviate the risk, the court may find the warnings to be
inadequate due to the nature of the product and its potential for serious harm.
The court will consider the primary user of the product in determining
whether the warning was sufficiently explicit to meet the standard of care
required. A specific warning may be
unnecessary when the product is designed not for the general consumer, but for
individuals with particular knowledge or skills.[30] In Austin
v. 3M Canada Ltd.,[31]
the plaintiff, an auto body repairman, sustained injuries while operating a
grinder to which was attached a grinding disk manufactured by the
defendant. After installing a new disk,
the grinder began to vibrate and the disk shattered. The evidence disclosed that optimum grinding
results were obtained at speeds under 5,000 r.p.m., and that the use of the
grinder in excess of 8,000 r.p.m. was dangerous. These facts were common knowledge among
individuals in the auto body repair business.
The court held that the plaintiff was an individual with particular
skills and knowledge, and concluded that the disk carried no danger in its
ordinary use in the hands of the reasonably competent auto body repairman.
The nature of the product is also a relevant consideration in determining
the standard of care required in a particular case. Manufacturers of medical and food products
will be subject to a very high standard of care given the nature of the risk
involved and the great capacity for injury.
Clear, complete, and current information must be provided to offset the
information imbalance between consumer and manufacturer. The court in Double Bar L Ranching Ltd. v. Bayvet Corp.[32]
held that the standard of care will vary, not only with the nature of the risk
entailed by the use of the product, but also with the likelihood that the risk
will materialize. In that case, the
plaintiff operated a farm, which included a large herd of cattle. Following the application of a pesticide
product manufactured by the defendant, the plaintiff's cattle died. There was evidence that the risk of death was
known to the manufacturer, however, the evidence did not establish that the
manufacturer knew or ought to have known death on the scale experienced by the
plaintiff could result from the application.
The court estimated that the number of applications in a three-year
period would equal roughly 150 million.
In that time, there were at most seven reported deaths. The court found that there was no duty
requiring the manufacturer to specifically warn of the risk of death, as it was
at most a negligible risk.
A breach of statute is not an independent
source of liability; however, proof of the breach and resulting damages may be
evidence of negligence.[33]
Manufacturers must fully comply
with all legislatively mandated warnings or risk liability. Although failure to comply with statutory
requirements may lead to liability, compliance with legislation does not
replace the common law duty to warn. In
many cases, manufacturers may be required to exceed the statutory provisions in
order to escape civil liability. In Smithson v. Saskem Chemicals Ltd.,[34]
the plaintiff suffered severe injuries, including blindness, after she
inadvertently combined two different drain cleaners in a floor drain. The containers for both carrieded the symbol
for being corrosive, as required by the regulations under the Hazardous Products Act. As such, the manufacturers took the position
that their products were labeled in a manner consistent with regulations and
provided adequate warning to the public.
The court held that it was a foreseeable risk that the two products
would be used in the same drain. Liability was imposed on the basis that
neither manufacturer had adequately warned of the attendant dangers of mixing
the two commonly used chemicals, despite the fact that the label on one bottle
had warned that the product should not be used where other drain chemicals are
present. The court found that it was
significant that this warning was made in the smallest print possible.
Warnings necessary to advise consumers of a manufacture or design defect
require a higher standard of care than those required due to a risk that is
inherent in the normal use of the product.[35] The standard of care required in some cases
suggests that a manufacturer may be sorely pressed to escape liability for
failure to warn without a full recall of the defective product. In Nicholson, the court held that a manufacturer
does not have the right to manufacture an inherently dangerous article when a
method exists of manufacturing the same product without risk of harm. Furthermore, no amount or degree of
specificity of warning may exonerate the manufacturer from liability if it
creates such a product. When the
manufacturer is unaware of the danger until after the product has been
marketed, there is a duty to correct the defect or to warn consumers once such
knowledge is gained. In that case, the
manufacturer was held liable for failure to warn despite having implemented a
program to advise users of the hazards associated with a design defect. The manufacturer produced a safety kit
available to consumers to rectify the problem; it sent letters to territory
managers and area service managers informing them of the program; it advised
dealers to urge their customers to have the safety kit installed; it advertised
in newspapers and sent unregistered letters to known original users; and it
placed a clearly worded safety decal on the gas tank and included warnings in
the operator's manual.
Similarly, the court in Can-Arc
Helicopters Ltd. v. Textron Inc.[36]
held that attempts by the manufacturer to warn the consumer of a defect in its
product were inadequate and insufficiently clear to escape liability. The
manufacturer had issued several service bulletins calling for replacement of
older gears. Each bulletin issued by the
manufacturer had attached a “Notice of Service Bulletin Compliance,” which
required the customer to return it once the requirements had been met. The court held that a manufacturer will not
be liable if it gives clear warning of, including precautions to be taken
against, danger from the use of its product.
However, the court found that the service bulletins did not meet the
foregoing test since the wording of the bulletin was confusing and did not
require the customer to take immediate action, but simply warned of the serious
consequences if action was not taken.
The Alberta Court of Queen's Bench, in George Day Contracting v.
Coneco Equipment,[37]
examined the manufacturer's duty to warn when forestry machinery purchased from
the defendant, Coneco was damaged by fire.
The court stated:
I cannot see how the manufacturer could have adequately warned the operators
of the fire hazard presented by these machines without scaring off potential
buyers. While it was apparent that there
was a substantial fire risk, it only become clear how high the risk was after
one machine after another was destroyed by fire. There is almost no evidence that the
operators were negligent in not cleaning the machine as frequently as one would
normally expect and they were entitled to rely on the manufacturer to make the
machine reasonably safe which I have found they did not. I conclude these machines should have been
recalled and the problems solved.[38]
X.
Causation
There is no liability for the failure to warn unless injuries or harm
result from such failure. In Trueman v. Ripley,[39]
the plaintiff claimed that he had suffered personality changes and memory loss
as a result of taking certain medication.
The court found that the plaintiff failed to prove that the drug caused
the general type of
behavior in issue, or that the drug caused
the plaintiff’s specific injuries. In
the same manner, the court held that the claim of the plaintiffs be dismissed
in Rothwell v. Raes.[40] The plaintiffs failed to prove on a balance
of probabilities that the infant’s brain injuries were caused by a vaccine
administered against dipheria, pertussis, tetanus, and poliomyelitis. The plaintiffs had sued the family physician
and the manufacturer of the vaccine for failing to warn of the inherent dangers
and side effects of the vaccine.
In most cases, once the plaintiff has proven a duty of care, a breach of that
duty, and injuries resulting from the risk that materialized, it is generally
assumed that harm would have been averted by an adequate warning. However, if the court finds that the
plaintiff would have used or consumed the product with full knowledge of the
risk, liability will not be imposed for a failure to warn. In Baker
v. Suzuki Motor Co.,[41] the
plaintiff alleged that the injuries he suffered in a collision while riding a
motorcycle would have been avoided had the fuel system been designed properly. The plaintiff argued that the manufacturer
was liable for failing to advise that the risk of fire in an accident would be
reduced if the gas tank was filled to just seventy-five percent of its
capacity. The court found that there was
no evidence to suggest that the plaintiff would have declined to ride the
motorcycle if he had been warned of the risk.
There was no liability, as the plaintiff had not proven that he would
have acted differently had a warning been provided.
The Supreme Court of Canada in Hollis
has recently endorsed a hypothetical analysis as to how the plaintiff would
have behaved, but for the defendant’s failure to warn. The majority of the Court used a subjective
standard of causation: would the plaintiff herself have chosen to use the
product but for the defendant’s breach? The court recognized that a subjective
standard permits the plaintiff to give self-serving testimony with the benefit
of hindsight, but held that cross-examination and proper weighing of evidence
could address this problem. This
analysis may signal a new subjective element that may be incorporated into
product liability actions.[42]
XI.
Defenses
A product liability action for failure to warn may be defended on the
basis that no duty of care was owed in the circumstances, the requisite
standard of care was met, or the failure to warn did not cause the injuries
suffered.
While the conduct of the plaintiff will not generally relieve the
manufacturer of all responsibility, it may support a finding of contributory
negligence. Contributory negligence may
exist in duty to warn cases when the plaintiff knew, or ought to have known,
that the use to which the product was being put could result in damage. Contributory negligence may also result if
the plaintiff’s state of mind was such that the use of the product took on an
increased element of risk.[43] In products liability, as with other tort
actions, the question of contribution and indemnity may arise with respect to
the conduct of codefendants or other parties.
The defendant manufacturer or distributor may claim contribution or
indemnity from third parties or codefendants whose acts or omissions
contributed to the injuries suffered by the plaintiff.
In contrast to actions where liability may be apportioned between the
parties, either between the defendant and plaintiff or the defendant and other
parties, there are certain circumstances that may provide a full defense to a
defendant in an action for failure to warn.
These defenses include the following: obvious dangers, exclusion by
contract, and the voluntary assumption of risk by the plaintiff.
XII.
Obvious Dangers
Where the danger or risk associated with the product is obvious, the
manufacturer generally has no duty to warn and will be relieved of liability
should an accident occur. The risk must
be one that is obvious to the public at large such that any warning would be
superfluous. The British Columbia Supreme Court, in Tabrizi v. Whallon Machine Inc.,[44] stated the
following:
In my opinion the law is clear that manufacturers owe a duty to warn of
the dangers inherent in their products except where those dangers are so
clearly evident so as to make any warning silly. Some misuse of a product will be so extreme
or unforeseeable that the danger is not really inherent in the product but in
the user.[45]
In Godin v. Wilson Laboratories
Inc.,[46]
the plaintiffs sued the manufacturers of rat poison. Following the use of the product, a rat died
behind the plaintiffs’ basement wall adjacent to a hot air heating duct. When the carcass of the rat began to smell,
the plaintiffs were forced to tear out the wall of the room and cut out a
section of the main beam of their home to remove the carcass and to eradicate
the smell. The court held that the defendant
was not under a legal duty to label the rat poison with a warning to the effect
that dead rats may smell bad and may be expensive to remove. In Deshane
v. Deere & Co.,[47] a forage harvester manufactured for
use in mobile field operations was altered for stationary use. The
plaintiff fell into the exposed feed rolls of the harvester and suffered severe
injury. The danger posed by the modified
use of the product would be obvious to any observer and was in fact known to
the plaintiff. As such, there was no
duty imposed by law to warn of the risk.
In the case of products for children, the risk must be evident to an
average child of like age, intelligence, and experience. In Amin
(Litigation Guardian of) v. Klironomos,[48] a child was
struck by a dart that was accidentally fired by a toy known as the “Bandit
Crossbow,” resulting in loss of sight in his left eye. The court noted that a child and adult have
differing capacities with respect to their ability to appreciate risks. Accordingly, a risk that is obvious to an
adult may not be obvious to a child.
While the court held that in this instance the risk was not obvious to
an adult let alone a child, it found the breach of the duty to warn was not a
causal factor in the plaintiff's injuries.
XIII.
Liability
Excluded by Contract
The liability for negligent failure to warn may be excluded by a clearly
framed contractual provision. In Bow Valley Husky (Bermuda) Ltd. v. Saint
John Shipbuilding Ltd.,[49]
a fire on an oil-drilling rig caused extensive damages. The cause of the fire was an electrical fault
in the heat trace system. The majority
of the Supreme Court held that the plaintiff was not entitled to claim against
the defendant based on the duty to warn, as liability had been contractually
restricted to negligent installation of the product. In Air
Nova v. Messier-Dowty Ltd.,[50]
the right main landing gear of an aircraft collapsed during landing, causing
damages. The parties had entered into an agreement, which contained several
warranty provisions and a waiver by the plaintiff of any other recourse it may
have against the defendant in tort. The court held that this contractual
immunity from liability for negligence included the negligent failure to warn
in addition to negligence in design or manufacture.
XIV.
Voluntarily
Assumption of the Risk
If the plaintiff has independent knowledge of the risk, fully accepts
that risk, and proceeds to use the product, the defendant will not be liable
for failing to warn of the danger. The
defense of volenti does not apportion
liability, but operates as an absolute bar to recovery. The courts, however, apply the test, very
stringently and the defense will be available in a very limited number of
cases. The evidence must be clear that
the plaintiff was fully aware of the nature and extent of the risk and made a
deliberate decision to use the product.
If the plaintiff does not turn his mind to the exact nature of the risk
that materialized, the court will not
find that there has been a voluntary assumption of the risk.
In Stiles v. Beckett,[51]
the plaintiff suffered serious injuries when he was driving an ATV on a dirt
trail at high speeds. The court found
that the plaintiff's injuries resulted from his own actions in operating the
ATV at an excessive speed over rough and unfamiliar terrain when he knew such conduct
was unsafe. The court found that the
defendants had discharged their duty to warn of the dangers associated with the
operation of the ATV and that the plaintiff had failed to prove that another
warning would have been more effective than those that had been provided. It held that the plaintiff would have paid no
more attention to additional warnings than he paid to those that the defendant
had given.
In Girard Bulk Service Ltd. v.
Advanced Engineered Products Ltd.,[52] a tanker truck unit was destroyed by
fire after the exhaust stack struck a power line. The plaintiff claimed
contribution from the manufacturer of the tank for not installing safety shut
off valves or failure to provide instructions as to the proper maintenance and
repair of the truck unit. The Saskatchewan Court of Queen’s Bench held that the
plaintiff knew the attendant danger of utilizing a fuel tank truck without
safety shut off valves and chose not to install the valves. The failure to equip the unit with the valves
was not attributable to any negligence on the part of defendant, but rather to
a deliberate decision of the plaintiff with the full knowledge of the risks
entailed in that decision.
XV.
Damages
In order to receive compensation for the injuries or loss suffered, the
loss must be compensable in law.
Personal injuries or property damage suffered as a result of the
manufacturer's failure to warn will be compensable in the same manner, and
subject to the same monetary restrictions, as other torts based on negligence
principles.[53] Property damage will be recoverable to the
extent of the loss. Personal injury
damages may include awards for pecuniary loss such as future care and loss of
income, as well as non-pecuniary damages for pain and suffering or loss of
amenities. In Andrews v. Grand & Toy Alberta Ltd.,[54] the
Supreme Court of Canada held that save in exceptional circumstances, $100,000
should be considered the upper limit of non-pecuniary loss. This amount is subject to the effects of
inflation.[55]
Recovery for pure economic loss is more problematic. The courts have often restricted recovery for
economic loss for fear of leading to indeterminate liability. However, the
Supreme Court of Canada has recently held that pure economic loss may be
recoverable when there is a foreseeable risk resulting from a defective
product. In Rivtow, the plaintiff found cracks in the mountings of the cranes,
as well as serious structural defects.
The plaintiff sued for the cost of repairs to the cranes and for the
economic loss caused by the recall of the barge during the repair period. The court held that the defendant
manufacturer knew that the plaintiff relied upon it for advice concerning the
operation of the cranes, and that a clear duty lay upon the defendant to warn
the plaintiff of the necessary repairs.
The breach of the duty to warn constituted negligence and the economic
loss attributable to the interruption of the plaintiff's business was the
immediate consequence of the breach. As such, these damages were
recoverable. The majority of the court,
however, refused to allow the plaintiff to recover the costs of repair.
Punitive or aggravated damages may also be awarded in products liability
cases if circumstances warrant. The
British Columbia Supreme Court, in Vlchek
v. Koshel,[56]
held that punitive damages may be awarded if the conduct of the defendant is
such to merit the condemnation of the court.
The act must be malicious or reckless to such a degree that it indicates
complete indifference to the consequences that may flow from the defendant’s
actions.
XVI.
Conclusion
Products liability law has generally recognized three categories of
negligence for which a manufacturer may be liable for loss suffered by a
consumer: design, manufacture, and warnings.
A product may be designed and manufactured with appropriate care, but if
it contains inadequate warnings with respect to foreseeable dangers, the
manufacturer may be liable. The duty to
warn is the most flexible and comprehensive concept in products liability, and
it is extremely broad in scope. The duty
to warn requires the manufacturer to warn of all foreseeable risks associated
with its product to a wide range of individuals, not limited to the actual
purchasers of the product. Manufacturers
are required to communicate clearly the precise risk inherent in the product
and to inform the user of the extent or gravity of the risk. The more foreseeable the circumstances and
the greater the risk of harm, the greater the obligation will be on the manufacturer
to provide specific and detailed warnings.
The duty to warn is becoming increasingly onerous, particularly with
respect to products that are recognized as inherently dangerous. The courts are slowly eroding the objective
standards that characterize negligence actions in tort and edging towards a
strict liability standard in products liability actions.
In some cases, the courts have extended the scope of reasonably
foreseeable dangers, in order to compensate individuals that suffer injury as a
result of inherently dangerous products, by imposing a standard of care that,
in some cases, approximates absolute liability.
In those cases, the courts have disregarded the conduct of the
manufacturer, reasonable or otherwise, and focused on the nature of the product
so that despite attempts to alleviate the risk, the court has found the
warnings to be inadequate due to the potential for serious harm. As such, there is a fear that manufacturers
will be placed in the role of insurers for their products.
In the face of increasing liability for failure to warn and the erosion
of the objective standards of negligence by the courts, how are manufacturers
to manage their own risk? Manufacturers
must be thoughtful and deliberate in the design and promotion of their
products. They must anticipate dangers
that may arise in the use of their products in a variety of circumstances, both
in the ordinary use and foreseeable misuse of the product. Manufacturers must ensure that the packaging,
as distinct from the product, does not create a reasonably foreseeable risk to
consumers. The foregoing may involve
increased product testing and study.
Manufacturers should also be aware of warnings provided for like
products. Is a competitor’s warning
clearer and more explicit with regard to the risks inherent in the product?
The duty to warn is a continuing duty that requires the manufacturer to
warn the consumer of inherent risks and dangers that are discovered even after
the product has been released to the market.
As such, manufacturers must pay careful attention to consumer complaints
regarding the use of their products once released onto the market. Warnings advising consumers of a manufacture
or design defect that becomes apparent after the product is already on the market
will be held to a very high standard of care.
A manufacturer must take measures to ensure that not only the original,
but subsequent purchasers of the product are aware of the defect. The standard of care to which the
manufacturer may be held in such cases should cause the manufacturer to
consider a full recall of the defective product if the risk of harm is
significant.
The content and presentation of the warning must be chosen with
care. Specific hazards may be
disregarded if the manufacturer attempts to provide too much information to the
customer regarding negligible risks. Is
the size, color, and design of the label sufficient to impart the risk to the
consumer? Warnings or instructions of
significant importance should be placed on the product itself rather than
incorporated into a pamphlet or manual.
This may limit liability on resale of the product. Manufacturers must also fully comply with all
legislatively mandated warnings, or risk liability. Although failure to comply with statutory
requirements may lead to liability, in many cases the manufacturer may be
required to exceed the statutory provisions in order to escape civil
liability. With the proliferation of
warning labels on everyday products, many consumers have become immune to their
effects and the manufacturers and distributors of highly dangerous products
must take particular care to affix warnings that will attract the attention of
the consumer.
ENDNOTES
† The author wishes to express thanks to Megan A. Klein, who assisted in the preparation of this paper. The opinions expressed herein are solely those of the author, and are not to be attributed to his firm, nor to any parties the firm may represent. Submitted by the author on behalf of the FDCC Products Liability Section.
[1] For further information on products
liability see: G.H.L. Friedman, The Law of Torts in
Canada (2d ed. 2002); 3 Lewis N.
Klar et al, Remedies in Tort
(Linda Rainaldi ed., 1987); Lawrence G.
Theall et al, Product Liability: Canadian Law and Practice (2002); Stephen
M. Waddams, Products Liability (4th ed. 2002).
[2] Sale of Goods Act, R.S.A. ch. S-2
(2000) (Can.); Sale of Goods Act, R.S.B.C ., ch. 410 (1996) (Can.); Sale
of Goods Act, R.S.M. ch. S-10 (1987) (Can.); Sale of Goods Act,
R.S.N.B. ch. S-1 (1973) (Can.); Sale of Goods Act, R.S.N. ch. S-6 (1990)
(Can.); Sale of Goods Act, R.S.N.W.T. ch. S-2 (1988) (Can.); Sale of
Goods Act, R.S.N.S. ch. 408 (1989) (Can.); Sale of Goods Act, R.S.O. ch.
S-1 (1990) (Can); Sale of Goods Act, R.S.P.E.I. ch. S-1 (1988) (Can.); Sale of
Goods Act, R.S.S. ch. S-1 (1978) (Can.); Sale of Goods Act, R.S.Y. ch. 198
(2002) (Can.).
[3] This has been termed the
"neighbor principle." Lord
Atkin of the English House of Lords established the classic formulation, which
is the foundation for the duty of care in
modern tort law, in M’Alister
(Donoghue) v. Stephenson, [1932]
A.C. 562.
[4] Hollis v. Dow Corning
Corp., [1995] 4 S.C.R. 634; Denis W. Boivin, Strict Products Liability
Revisited, 33 Osgoode Hall L.J.
487 (1995); Denis W. Boivin, Factual Causation in the Law of Manufacturer
Failure to Warn, 30 Ottawa L. Rev.
47 (1989-99).
[5] R.S.C., ch. F-27 (1985) (Can).
[6] R.S.C., ch. H-3 (1985) (Can.).
[7] C.R.C., ch. 934.
[8] R.S.C., ch. H-3, § 28 (Can.).
[9] The ruling in M’Alister (Donoghue) v. Stephenson, [1932] A.C. 562,
expanded the relationships that may give rise to a duty of care, and was, in
fact, a products liability action. A
friend purchased a bottle of ginger beer for the plaintiff who suffered damages
when the remains of a decomposed snail were discovered within the bottle. The plaintiff sued the manufacturer despite
the fact that there was no privity of contract between the parties. The House of Lords held that a manufacturer
owes a duty of care to the ultimate purchaser or consumer, who could reasonably
be foreseen as being affected by its negligent conduct.
[10] [1989] B.C.W.L.D. 2317 (S.C.), aff’d,
(1992), 88 D.L.R. (4th) 358 (B.C.C.A.).
[11] (1964), 44 D.L.R. (2d) 215 (Alta.
C.A.).
[12] (1986), 34 D.L.R. (4th) 542 (Ont.
H.C.), aff’d, (1989), 57 D.L.R. (4th) 639 (Ont. C.A.).
[13] [1932] A.C. 562 (H.L.).
[14] (1979), 31 N.S.R. (2d) 380 (C.A.).
[15] (1974), 46 D.L.R. (3d) 614 (B.C.S.C.).
[16] (1985), 66 N.B.R. (2d) 10 (C.A.).
[17] (1960), 28 D.L.R (2d) 522 (N.S.S.C.).
[18] [1955] O.R. 937 (H.C.).
[19] (1976), 69 D.L.R. (3d) 276 (Alta.
C.A.).
[20] [1974] S.C.R. 1189.
[21] Id. at 1200.
[22] [1972] S.C.R. 569.
[23] Id. at 574-75.
[24] (1986), 25 D.L.R. (4th) 658 (Ont.
C.A.).
[25] (1985), 32 C.C.L.T. 126 (Ont. H.C.).
[26] (1995), 139 N.S.R. (2d) 309 (S.C.), aff’d,
146 N.S.R. (2d) 392 (C.A.).
[27] For further information on the content
of warnings see: Thomas J. Dunne, Disclaimers: Can Liability for Products
that Cause Harm be Avoided?, 6 Advocates’
Soc. J. No. 5, 24 (1987).
[28] Baker v. Suzuki Motor Inc., [1993] 8
W.W.R 1 (Alta Q.B.). For a
further discussion on strict liability in both Canada and the United States see
Denis W. Boivin, Strict Products Liability Revisited 33 Osgoode Hall L.J. 487 (1995); Denis W.
Boivin, Negligence, Strict Liability and Manufacturer Failure to Warn: On
Fitting Round Pegs in a Square Hole, 16 Dalhousie
L.J. 299 (1993).
[29] See Boivin, supra note
28.
[30] Murphy
v. St. Catherines General Hospital (1963), 41 D.L.R. (2d) 697 (Ont.
H.C.).
[31] (1974), 7 O.R. (2d) 200 (Co. Crt.).
[32] (1996), 148 Sask. R. 195 (C.A.), leave
to appeal to the S.C.C. refused, [1996] S.C.C.A. No. 623.
[33] Canada v. Saskatchewan
Wheat Pool, [1983] 1 S.C.R. 205.
[34] (1985), 43 Sask. R. 1 (Q.B.).
[35] For further information on the duty to
warn of known defects see Boivin, supra note 28.
[36] (1991), 86 D.L.R. (4th) 404
(B.C.S.C.).
[37] (1996), 189 A.R. 346 (Q.B.).
[38] Id. at 98.
[39] [1998] B.C.J. No. 2060 (S.C.).
[40] (1988), 54 D.L.R. (4th) 193 (Ont.
H.C.), aff”d, (1991), 76 D.L.R. (4th) 280 (Ont. C.A.) leave to appeal
to S.C.C. refused, (1991), 79 D.L.R. (4th) vii.
[41] [1993] 8 W.W.R. 1 (Alta. Q.B.).
[42] In contrast, the Supreme Court of
Canada has adopted an objective standard in the context of informed consent to
medical procedures: would a reasonable person have chosen to undergo the
procedure having full knowledge of the risks?
The Supreme Court of Canada in Hollis
v. Dow Corning Corp., [1995] 4 S.C.R. 634, and the Ontario Court of
Appeal in Buchan v. Ortho Pharmaceutical (Canada) Ltd., (1986), D.L.R.
(4th) 658 (Ont. C.A.) both justified
this distinction based on the differing responsibilities in a doctor-patient
relationship as compared to a manufacturer-consumer relationship. A manufacturer is a commercial entity that
promotes its products to gain sales and may accentuate the value of a product
while underemphasizing the risk. As
such, the court in Buchan, held that
the manufacturer of a drug was not entitled to require the injured consumer to
prove that a reasonable consumer in the same position would not have taken the
drug if properly warned. For further
information on the learned intermediary rule and causation see Patricia Peppin,
Drug/Vaccine Risks: Patient Decision-Making and Harm Reduction in the
Pharmaceutical Company Duty to Warn Action, 70 Can. Bar Rev. 473 (1991); Denis W. Boivin, Factual
Causation in the Law of Manufacturer Failure to Warn, 30 Ottawa L. Rev. 47 (1989-99); Matthew
Lewans, Subjective Tests and Implied Warranties: Prescriptions for Hollis v.
Dow Corning and ter Neuzen v. Korn, 60 Sask.
L. Rev. 209 (1996).
[43] In McEvoy, the court held that James McEvoy’s state of intoxication contributed to the accident that caused his death. Mr. McEvoy failed to put the gearshift in the park position and did not turn off the truck’s engine. When he realized the truck was moving, he attempted to enter the vehicle through the passenger side door but slipped to the ground behind the front tire of the vehicle. The court held that Mr. McEvoy was 35% at fault, having breached that standard of care a reasonable person owes himself.
[44] (1996), 29 C.C.L.T. (2d) 176
(B.C.S.C.).
[45] Id. at 189.
[46] (1994), 145 N.B.R. (2d) 29 (Q.B.).
[47] (1993), 15 O.R. (3d) 225 (C.A.), leave
to appeal to S.C.C. refused, (1994), 17 O.R. (3d) xvi.
[48] [1996] O.J. No. 826 (Gen. Div).
[49] [1997] 3 S.C.R. 1210.
[50] (2000), 128 O.A.C. 11 (C.A.).
[51] (1993), 22 C.P.C (3d) 145 (B.C.S.C.), aff’d,
(1996), 45 C.P.C (3d) 48 (B.C.C.A.), leave to appeal to S.C.C. refused,
137 W.A.C. 80n.
[52] (1992), 106 Sask. R. 202 (Q.B.).
[53] For further information on damages in
products liability actions see: Hans J.B.A Dickie, The Scope, Measurement
and Calculations of Damages in Products Liability Cases, 11 Can. J. Ins. L. 81 (1993).
[54] [1978] 2 S.C.R. 229.
[55] In ter Neuzen v. Korn, [1995] 3 S.C.R. 674, the Supreme Court of
Canada held that the rough upper limit on non-pecuniary damages should apply,
despite the grievous injury suffered by the plaintiff. The plaintiff had contracted AIDS as the
result of an artificial insemination program.
[56] (1988), 52 D.L.R. (4th) 371 (B.C.S.C.),
leave to appeal to C.A. refused, (1988), 52 D.L.R. (4th) 371n.
(Author’s bio)
Bruce
Churchill-Smith, Q.C. is a senior partner with Parlee McLaws LLP in the firm’s
Calgary office. Mr. Churchill-Smith is
the Co-Chair of the firm’s Litigation & Insurance Services Group. He has represented many manufacturers on
product liability claims and has provided counsel to property and casualty
insurers. Mr. Churchill-Smith is a member
of the Federation of Defense & Corporate Counsel (F.D.C.C.), the Defense Research
Institute, and the Canadian Defense Lawyers’ Association. He is a graduate of Queens University and
University of Calgary Faculty of Law.