Manufacturers can be responsible for damages arising from personal injuries caused by their dangerous or defective products because Courts have long recognized the duty of care owed by manufacturers in relation to their products. This flows from the neighbour principle set out by Lord Atkin in the seminal decision in Donoghue v Stevenson, 1932 CanLII 536 (FOREP):
You must take reasonable care to avoid acts or omissions which you can reasonably foresee would be likely to injure your neighbour. Who, then, in law, is my neighbour? The answer seems to be – persons who are so closely and directly affected by my act that I ought reasonably to have them in contemplation as being so affected when I am directing my mind to the acts or omissions which are called in question.
Resulting from the neighbour principle are the four established categories of product liability causes of action arising in negligence which Justice Perrell discussed in Carter v Ford Motor Company of Canada, 2021 ONSC 4138:
- Design negligence: manufacturers owe a duty of care in designing the product to avoid safety risks and to make the product reasonably safe for its intended purposes.
- Manufacturing negligence: manufacturers owe a duty of care to consumers to see that there are no defects in manufacture that are likely to give rise to injury in the ordinary course of use.
- Duty to repair dangerous goods: manufacturers owe duty of care to compensate consumers for the cost of repairing a dangerous product that presents a real and substantial danger.
- Duty to warn: manufacturers owe duty of care to warn consumers of dangers inherent in the use of the product of which the manufacturer has knowledge or ought to have knowledge.
What is Design Negligence?
Design negligence imposes liability for the Defendant’s failure to design its product in a safer manner. As Justice Smith explained in Nicholson et al v John Deere Ltd et al, 1986 CanLII 2502 (ON SC), “a manufacturer does not have the right to manufacture an inherently dangerous article when a method exists of manufacturing the same article without risk of harm.”
In Mayburry v Ontario (Liquor Control Board),  OJ No 1494, the Plaintiff recovered against the manufacturer of a carbonated alcoholic drink when a shard of glass injured her eye after a glass bottle was dropped onto the ground and exploded. The design of the bottle itself was negligent because it permitted glass fragments to travel up to 10 feet from where the bottle shattered.
Liability will attach where the risk of injury is foreseeable and the efforts made to reduce those risks are not reasonable. Justice Boyko in Mayburry explained that the risk of injury and efforts made to reduce that risk are to be considered against the nature of the product (whether inherently dangerous or not), the usefulness of the product, the availability and economic feasibility of a safer design and the degree to which a consumer can safely use the product.
What is Manufacturing Negligence?
Manufacturing negligence imposes liability where an issue in the manufacturing process itself results in a defective product. For instance, in Donoghue v Stevenson, the decomposed remains of a snails were found in a bottle of ginger beer that had been partially consumed by the Plaintiff. Something clearly went wrong during the manufacturing process resulting in a defect to the product which gave rise to a claim for damages (see also citing Martin v Astrazeneca Pharmaceuticals Plc, 2012 ONSC 2744 citing Rowe (Guardian ad litem of) v Sears Canada, 2005 NLCA 65 for a discussion of negligent manufacturing).
What is the Duty to Repair Dangerous Goods?
The duty to compensate consumers for the cost of repairing dangerous products arises from a “pure economic loss” because there is no personal injury. Instead, the loss is the cost of avoiding the personal injury that could result from the inherently dangerous product. For instance, in Winnipeg Condominium Corporation No 36 v Bird Construction Co, 1995 CanLII 146 (SCC), the condominium corporation recovered from the builder the cost of replacing cladding on the outside of the building after a storey-high section of cladding fell nine storeys onto the ground. The Supreme Court of Canada in 1688782 Ontario Inc v Maple Leaf Foods Inc, 2020 SCC 35, recently held that the duty recognized in Winnipeg Condominium exposed the Defendant to liability for the cost of averting a real and substantial danger and not simply for repairing a defect per se.
What is the duty to warn?
The duty to warn requires a manufacturer to warn consumers of dangers inherent in the use of its product which it knew or ought to have known at the time and of dangers that are discovered after the product has been sold and delivered. The warnings must be reasonably communicated and clearly describe the specific dangers that arise from the ordinary use of the product. For instance, in Hollis v Dow Corning Corp, 1995 CanLII 55 (SCC), the Plaintiff recovered against the manufacturer of her breast implants after it did not sufficiently warn her or her plastic surgeon of the risk that the breast implant could rupture.
Is there liability on the retailer?
Retailers can also be liable for injuries arising from defective products. Section 15 paragraph 2 of the Sale of Goods Act, RSO 1990, c S.1, imposes an implied condition on the sale of goods that the goods will be of merchantable quality. The Court of Appeal for Ontario in Shandloff v City Dairy Ltd and Moscoe, 1936 CanLII 68 (ON CA) found the retailer of chocolate milk liable to the Plaintiff for injuries arising from pieces of glass in a chocolate milk bottle.
The Court of Appeal explained that the retailer breached the Sale of Goods Act and was “liable, although he is not the manufacturer, for there is an implied condition that the chocolate milk sold was of merchantable quality.” A claim under the Sale of Goods Act will depend on the specific defect alleged. In Mayburry the claim under Sale of Goods Act against the LCBO was dismissed because the carbonated drink was of merchantable quality. Instead, the allegation was really a failure to warn by the LCBO, which was not covered by the Sale of Goods Act.
What if you have been Injured by a Defective Product?
Retaining the defective product is crucial. A thorough examination and inspection of the product can help determine the type of claim that will be advanced and against whom the claim will be advanced. Take clear pictures of the product, including any serial numbers, and keep any receipts or documentation regarding the product. Speak to a lawyer about a potential claim. The lawyers at Bogoroch & Associates are experienced in product liability lawsuits. If you or a loved one has been injured by a defective product, contact Bogoroch & Associates for an assessment of your case.
Bogoroch & Associates LLP is experienced in all aspects of personal injury and medical malpractice litigation. We have the confidence and skill to advance your motor vehicle accident or medical malpractice claim to settlement or trial while helping you navigate the complex medical, legal, and insurance issues.
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If you or your loved one has been injured in an accident or believes that you are a victim of malpractice or negligence, reach out to a personal injury or medical malpractice lawyer to understand if you too have a claim. Please contact any of our personal injury lawyers at Bogoroch & Associates LLP for a free consultation.