Manufacturer's Duty to Warn: A Canadian Perspective[dagger], The

Churchill-Smith, Bruce

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 Canada, with particular emphasis on the manufacturer's duty to warn in negligence actions.

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 categoiy 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 Act5 and the Hazardous Products Act6 regulate the production and distribution of potentially dangerous consumer goods in Canada, including food, drugs, and manufactured articles. The Hazardous Products Act, and its associated regulations, prescribes the conditions under which hazardous products may be advertised or sold in Canada. The regulations created pursuant to that Act require specific warnings to be provided on various products sold in Canada. For example, the Science Education Sets Regulations,7 in section 5, requires the following warning to be printed on the outer display carton and in any accompanying literature:

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'Allster (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 ^ 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 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 ha/ard 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. MessierDowty 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 ofvolenti 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.

[dagger] 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.

R. 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 (Alla 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.

Bruce Churchill-Smith, Q.C.

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.

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