As a result of the House of Lords decision in Donaghue v. Stevenson, [1932] A.C. 562, the law of negligence as it concerns manufacturers of consumer products in Canada was forever changed. That case held that a manufacturer owes a duty of care to those individuals who the manufacturer ought reasonably to expect would be exposed to the product. So although Mrs. Donaghue was not even the purchaser of the ginger beer which the proprietor of a parlor poured over her ice cream, she was held to have a cause of action against the bottler of the ginger beer when the remnants of a snail caused her to become ill.
That was a case of a manufacturing defect but the duty of care for negligent design or design defect is founded on the same principles. The application of these principles is not limited to manufacturers but may also be applied to other parties within the chain of distribution.
Negligent design claims, like claims for manufacturing defects, have a potential for being large and may result in class action lawsuits. One reason for this is that the defective nature may not be known until the product is in full use in society and by that time any number of people may have been affected. Moreover, such defects may necessitate massive and expensive recalls. In this paper we will only be addressing negligent design and related issues.
Nature of Negligent Design
A negligent design may exist if there is an aspect of a product that renders it so dangerous that the value associated with having the product available is outweighed by the risk it carries. A given design will usually be negligent if the product could have been designed in a safer way. Where the utility of a product justifies its production but the danger is not obvious, a warning may be necessary. If the warning is inadequate, the warning itself is what may give rise to the liability for negligent design.
Having determined that a duty of care exists between the manufacturer and the consumer, the next step is to determine what the relative standard of care is in relation to a product in question. The law of negligence requires that one use reasonable care in the circumstances and nothing more; the standard of what is reasonable increases with the level of risk and the probability of harm associated with the product’s use. It is when this standard of care is breached and damage occurs that a manufacturer or supplier is liable for that damage.
The highest standard of care appears to apply to manufacturers of food and beverages and other products which are ingested or placed in the human body, including pharmaceuticals and various medical implants.
Generally, the legal exposure for negligent design arises out of the common law of negligence. However, there may also be statutory exposures, although there is usually a requirement of privity of contract between the plaintiff and defendant. Primary among these are the provincial Sale of Goods Act. On June 20, 2011, the Canada Consumer Product Safety Act, S.C. 2010, c. 21, was enacted to further bolster consumer safety that was previously covered by the federal Hazardous Products Act. The new legislation empowers the federal authorities to order a mandatory product recall, a measure that was only voluntary before.
More v. Bauer Nike Hockey Inc., 2010 BCSC 1395
The past season of NHL hockey will probably not be remembered by most as the year the Canucks nearly went all the way, but rather, for the significant impact that head injuries have caused to some of the sports greatest players.
In one of the most recent and topical cases, the Bauer Nike Hockey case came before the BC Supreme Court. The Plaintiff had suffered a devastating brain injury while playing ice hockey. At the time he had been wearing a helmet manufactured by the Defendant. The action was also brought against the Canadian Standards Association (CSA), the organization responsible for setting minimum standards for helmets and many other consumer products.
The Plaintiff’s theory was that the helmet was inadequate for its primary purpose, namely to protect against the type of injury suffered by the Plaintiff as a result of a rear impact. In order to consider this charge, the Court had to determine the purpose for which hockey helmets are designed and then to look at the specific type of injury and the probable biomechanical aspects that gave rise to it.
The Court found that hockey helmets are designed to protect the user’s head from translational, or linear, forces as opposed to rotational, or angular, forces. In fact, the helmet in question included the following warning on its box:
WARNING: Ice hockey is a collision sport which is dangerous. These helmets afford no protection from neck, spinal or certain types of injuries including those that may be caused by rotational forces. Severe head, brain or spinal injuries including paralysis or death may occur despite using the helmet.
In regards to the injury, the Court found that the Plaintiff had suffered a serious subdural haematoma (SDH). More importantly, it held that the SDH was caused by a bridging vein tear rather than a cerebral contusion. A bridging vein leads from the brain to the vascular channels of the dura covering the brain. Although a severe SDH caused in this fashion is a rare injury to a young person, after hearing from medical and biomechanical experts, the Court appears to accept that the injury was caused primarily by translational, but also by rotational forces.
In the reasons for judgment, the Court adopted the basic analysis of negligent design set down by the Court of Appeal in Harrington v. Dow Corning Corp., 2000 BCCA 605, leave to appeal refused 2001 CarswellBC 1873 (S.C.C.):
- Risk Assessment:
- Is the product defective under ordinary use or, although non-defective, does it have a propensity to injure?
- What is the state of the manufacturer’s knowledge of the dangers of its product? Should it only be distributed with an appropriate warning?
- If the value of the product’s use outweighs the risks, was the warning reasonable given the state of the art and the extent of the risks inherent in the product’s use?
- Causation and Damages Assessment:
- Would the individual’s knowledge of the risks have prevented the injury?
- If the product should not have been sold in the form or with the warnings it had, did the product cause the injuries and what are the damages?
In the case at bar, the product was a safety device so the approach was modified from that applied to products that carry an inherent risk of use. Given that such products are meant to protect against existing risks, the issue to consider was whether it failed to provide reasonable protection when in normal use.
In addition to the principles set out above, the Court considered that the current state of the law in Canada was that a manufacturer does not have to use the safest design available as long as the design was reasonable in the circumstances.
Looking at the specific product and its intended use, the Court held that the helmet offered a reasonable level of safety for rear impacts. It went on to conclude that it was not feasible to design the helmet in a safer manner.
Ultimately, the claim was dismissed against the manufacturer. First, the Court determined that the relevant standard set by the CSA was reasonable and even if held to the more stringent standard advocated by the Plaintiff, the helmet would have passed. Second, the Court held that the Plaintiff had failed to prove causation. Considering that the helmet was designed primarily to protect against linear or translational rather than rotational forces, the material contribution of the rotational force to the causation of the Plaintiff’s injuries appears to have been a significant factor in the Court’s finding that the helmet was not the proximate cause of the loss.
While the claim was also dismissed against the CSA, the Court did hold that the CSA owed a duty of care to the Plaintiff, setting a new precedent. The trial decision was appealed and the decision on the appeal is reserved.
Other Negligent Design Considerations
Although the More v. Bauer Nike case provides a good update to the law of negligent design, there are several other factors that the courts will look at in cases of negligent design.
(a) Product Misuse
Even when plaintiffs are injured while using the defendant’s product for an unintended use or in an unintended manner, the manufacturer may be liable if it has failed to account for a danger in the product’s design posed by an unintended but foreseeable event or use. One of the best examples of this is a chair that does not support the weight of a person while standing on it. While everyone knows that chairs are intended to be sat on rather than stood upon, it is certainly foreseeable that people will use chairs for such other uses. Depending on the circumstances, the manufacturer may also be required to warn against the misuse.
Despite the foregoing, there is still an element of reasonableness that will be applied. As such, the law will not require a manufacturer to anticipate and warn against all combinations and permutations of possible acts and omissions. To do so would render the manufacturer an insurer.
(b) Duty to Warn
A manufacturer of a product has a duty to warn consumers of dangers inherent in the use of its product of which it has knowledge. The manufacturer’s lack of actual knowledge of a danger may not absolve it of liability for failure to warn – constructive knowledge of the danger is often sufficent.
The duty to warn is a continuing duty, requiring a manufacturer to warn not only of dangers known at the time of sale, but also of those discovered after the product has been sold. Often the manufacturer is considered to be an expert in the field and therefore has an obligation to keep informed of scientific developments that are relevant to its product and to communicate that information to consumers and users if necessary.
All warnings must be reasonably communicated, and must clearly describe any specific dangers that arise from the ordinary use of the product, including foreseeable misuse of the product.
Hollis v. Dow Corning Corp., [1995] 4 S.C.R. 634.
The Supreme Court found the defendant manufacturer liable for failure to warn as it had failed to share its knowledge with the medical community about the risk of post-surgical implant rupture arising from ordinary non-traumatic human activities.
(c) Adequacy of Warning
Where it is clear that a warning is called for, the next consideration is whether the warning is adequate.
Lambert v. Lastoplex Chemicals Co. [1972] S.C.R. 569
The plaintiff engineer was seriously injured when fumes from the defendant’s lacquer product exploded while the plaintiff was lacquering his basement. Before using the lacquer, the plaintifff turned down his thermostat to prevent the furnace from automatically engaging but an explosion occurred because he did not extinguish the pilot light. Although the defendant’s product contained several general warnings, it did not warn against using the lacquer near a lit pilot light.
(d) Learned Intermediary
Depending on the product, the manufacturer may satisfy its duty to warn by directing its warning to skilled individuals as opposed to the consumer but this is an exception to the general duty to warn of a dangerous aspect of a product.
- The intermediary must be ‘learned’ in the sense that its knowledge of the product and its risks approximates the knowledge of the manufacturer.
- The learned intermediary rule applies only to cases involving a product which is “highly technical in nature and is intended to be used only under the supervision of experts, or where the nature of the product is such that the consumer will not realistically receive a direct warning from the manufacturer before using the product.”; Hollis v. Dow Corning Corp., supra
(e) User’s Knowledge of Risk
Where the user is independently aware of the precise risk, the manufacturer may not be liable to the user when the risk materializes:
Girard Bulk Service Ltd. v. Advance Engineering Products Ltd. (1992), 106 Sask. R. 202 (Q.B.)
The plaintiff chose not to incur the additional cost of purchasing optional safety shut-off valves for the fuel tank truck it purchased from the manufacturer defendant. A large explosion ensued after the plaintiff accidentally backed the truck into overhead power lines. The plaintiff sued the manufacturer for failure to warn of the risk associated with not having this particular safety feature. In ruling for the manufacturer, the court found that the plaintiff was as aware as the manufacturer of the danger of not using the safety shut-off valves and fully appreciated and assumed that risk.
(f) Adequacy of Testing
The existence and adequacy of pre-manufacture design testing can be a key factor in determining negligence in a negligent design case:
Stevens (Litigation Guarding of) v. Forney, [1993] O.J. No. 759 (QL) (Gen. Div.)
A 12 pound infant was seriously injured in an automobile accident while properly secured in a child safety seat.
The label on the seat indicated that it was safe for children up to 20 pounds. The negligent defendant had conducted no tests using dummies under 17 pounds and it failed to simulate lateral impacts at speeds above 30 miles per hour.
(g) Alternative Designs
If there is a safer design available and feasible, the manufacturer may be liable for failing to utilize it in the product.
Nicholson v. John Deere Ltd., (1986), 58 O.R. (2d) 53 (H.C.J.)
A lawnmower caught fire while being refuelled. The fire occurred when a metal gas tank cap rolled into contact with the positive battery terminal, causing a spark that ignited the gasoline vapours around the opening to the gas tank. The court held the manufacturer does not have a right to manufacture an inherently dangerous product when a method of manufacturing the same product without the risk of harm exists.