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EXTRA-CONTRACTUAL OBLIGATIONS/TORTS 2002-2003 Prof. LARA KHOURY - page 29 / 64

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McGill Faculty of Law: Extra-Contractual Obligations/Torts: Prof. Lara Khoury, 2002-03/Summary by Derek McKee

Product Liability

In Canadian common law, there is no special regime of product liability. Negligence law is applied instead.

There is no strict liability, except perhaps in cases involving a direct contract.

The rule of the privity of the contract was historically a huge obstacle to third-party claims.

Since Donoghue v. Stevenson, the manufacturer is required to exercise reasonable care, but only reasonable care.

Subsequent cases expanded Donoghue v. Stevenson to component makers, installers, repairers, etc.

There is a duty to warn consumers of inherent dangers: This applies even after the product is sold, if new dangers are discovered.

Lambert v. Lastoplex Chemicals Co., [1972] S.C.R. 569. (CB1p449)

Jurisdiction

Ontario

Facts

Lambert was lacquering the floor in his basement when the pilot light from his furnace in the neighbouring room ignited vapour from the lacquer and caused an explosion. Lambert was burned and the house was damaged. The label on the lacquer can warned consumers, “Keep away from fire, heat and open-flame lights” and “Caution: inflammable,” but said nothing specifically about pilot lights, unlike a competitor’s can.

Issues

Had Lastoplex fulfilled its duty to warn consumers of inherent dangers?

Holding

No.

Ratio

According to Laskin J., the duty to warn has four conditions:

1. The product is on the market for the general public.

2. The product can be dangerous when used for its intended purpose.

3. The manufacturer knows or ought to have known about the danger.

4. The public is not as aware of the details of the danger as the manufacturer.

If all of these conditions hold, the manufacturer has a “duty to specify” the dangers.

Comments

Laskin’s third condition resembles a reasonableness standard—this test seems to amount to a duty of care to warn consumers.

A corollary of this judgment is that if the dangers of some products are sufficiently known, there is no need to warn consumers (e.g. that you might cut yourself with a knife).

The same rules apply for pharmaceutical products: prescription drugs, over-the-counter drugs, vaccines, implants, etc.

However, with pharmaceuticals there is the added complication that there are intermediaries between the manufacturer and the patient.

Hollis v. Dow Corning Corp., [1995] 4 S.C.R. 634. (CB1p497)

Jurisdiction

British Columbia

Facts

The doctor who gave Hollis breast implants failed to warn her about the risks of rupture or other complications. The implants did rupture, seriously harming Hollis’s health. At the time, Dow Corning, the manuafcturer, knew of similar unexplained ruptures.

Issues

Was it sufficient for Dow to warn doctors of the risks of the implants, or did Dow have a duty to ensure that patients were informed as well?

Holding

Dow only had a duty toward the doctors.

Ratio

There was a “learned intermediary” (the doctor) who had a duty to inform the patients. However, the manufacturer had not adequately inforrmed the doctor (it kept quiet about some of the information), and thus could be held liable.

civil law: In Quebec, this area of the law is covered by (a.1468,1469,1473)

It appears that manufacturers have presumption of responsibility for injuries caused by safety defects, but:

Manufacturers can defend themselves by proving that the injured person knew of the defect or could have foreseen the injury. (a.1473 al.1)

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