7.3 - Other Defences to Product Liability

Question 1

Definition - “Contributory Negligence”

Answer 1

Many accidents are the partial fault of both parties who are involved in the accident. The plaintiff who sues another party for damages may also be guilty of some negligence, which is a concurrent cause of the damage, and is therefore guilty of contributory negligence

Question 2

Contributory Negligence

Answer 2

-the contributory negligence defence can be used when the plaintiff has misused the product
-for example in ‘Smith v. Inglis Ltd.’, the plaintiff removes the third prong of an electrical plug or a recently purchased appliance, removing the ground and making it defective. In this particular case, the plaintiff is an experienced builder who know full well the dangers involved in using ungrounded appliances
-contributory negligence can also be applied in situations where equipment has not been tested or installed properly
-for example, a man is electrocuted as he negligently installs a machine without conducting a mandated testing procedure. His widow must settle for a reduction in the amount of the claim because the man was partially at fault for the accident

Question 3

Abnormal Use

Answer 3

-Abnormal use is another defence available
-if the defendant can prove that the product was put to a use that was totally unpredicted, it will be absolved of liability because the risk was not foreseeable
-in ‘Rae v. T. Eaton Co. (Maritimes) Ltd.’ a can of artificial snow is banged on concrete and explodes and injures a child’s eye, but retailer is not found liable as the use is considered abnormal
-in ‘Yachetti v. John Duff and Sons’ - plaintiff contracts trichinosis after eating raw pork, but court dismisses the case because it is well known that pork must be cooked thoroughly before being eaten

Question 4

Voluntary Assumption of Risk

Answer 4

-the defence of voluntary assumption of risk (volenti or volenti non fit injuria) rests on the principle that those who waive their rights are not protected by law
-when a consumer has been provided with information about a product that would leas a reasonable person to fully appreciate the risk associated with the product, and that person makes a conscious choice to continue to use the product, a court would likely rule that the claimant voluntarily assumed the risk

Question 5

Intermediate Examination

Answer 5

-the consumer may receive the product in the same form as when it left the manufacturer, or the product may have been examined or interfered with by someone before the consumer received it
-an intermediate examination of the product may have been a cause of the defect
-if the manufacturer can show that it could reasonable by expected that a party handling the goods or even the ultimate consumer should have noticed and corrected an obvious defect, liability may be limited
-when an intervening activity creates a defect in a product, it could affect the injured party’s claim against the manufacturer
-if it can be shown that the intervention led to the defect, the manufacturer may have recourse against another party or be held jointly responsible for the damages
-the plaintiff may or may not have inspected the product before using it, which could affect the liability of the parties

Question 6

Learned Intermediary Rule

Answer 6

-the ‘learned intermediary rule’ originated in pharmaceutical litigation, but courts have recognized that it applies in other contexts
-the rule is described by courts as an application of the principle of intermediate examination and intervening cause
-for example, the consumer relies on a professional to exercise skill in dispensing the product. It is not for the consumer to understand the technical application associated with the product, that is left to the skilled user
-the learned intermediary rule is an exception to the manufacturer’s duty to warn a consumer about the risks of a product
-if the manufacturer does not apprise the learned intermediary of the risks associated with the product, the learned intermediary cannot properly make judgements about the use of the product or inform the ultimate consumer about them
-the rule applies when the product is technical and intended to be use only under expert supervision
-consider the position of a surgeon who is using a product that will be inserted into or attached to a patient
-it is up to the manufacturer to make the surgeon aware of any special risks associated with the product and under what circumstances it can be used. The surgeon then assesses whether the patient is a candidate for the product and provides the information about the risk of the procedure and the risks associated with the product to the patient
-a learned intermediary might need much less information than the general public about a product
-for example, a manufacturer restricts sales strictly to vets and only provides information about the active ingredient in certain products
-the manufacturer can rely on the learned intermediary rule because any competent vet knows the relevant contraindications