Know Your Rights: Product Liability in British Columbia

Written by Trent M. Zoobkoff

Defective Products

A “defective product” is a product that causes damage or injury as a result of some defect in its design, manufacture, or labeling. In British Columbia, a manufacturer of a defective product may be liable to you in both tort and contract law. Provincial legislation, such as the Sales of Goods Act, may also be used to protect you from defective products in certain cases. The scope of this article examines how tort-law operates to protect you from defective products in the marketplace.

Product Liability: Tort Liability

A manufacturer’s liability in tort for a defective product is based on principles of negligence. Negligence claims for injuries caused by a defective product typically fall into three general categories. Those categories include liability for:

• Designing a product negligently;
• Manufacturing a product negligently; and
• Failing to properly warn users and consumers of dangers inherent in a product’s design or use.

Each category will be discussed in greater detail below.

• Negligent Design:

Manufacturers have a duty to design products that are reasonably safe for use. If you are injured as a result of a product and it is later found that the manufacturer could have reduced that risk of injury by using a safer, alternative design, that manufacturer may be found liable for not implementing that safer design. Critically, however, the law does not require a manufacturer to use the safestdesign possible. Rather, the law simply requires a manufacturer to select a design that is reasonable in the circumstances. In negligent design cases, the court looks to a number of factors when determining liability including, but not limited, to the cost of employing the alternative design, the state of knowledge and technology at the time the product was manufactured, and your ability to avoid injury by careful use of the product.

• Negligent Manufacture:

Manufacturers owe a duty to take reasonable care in the manufacture, inspection, and testing of the products it produces. A manufacturer’s failure to take such reasonable care can result in liability if you are hurt or injured while using the product. In cases where negligent manufacturing is alleged, the onus is on you to show that:

• The product was defective;
• The defect in the product was the cause of your injuries; and 
• The manufacturer was negligent in allowing the defect in the product to occur.

Establishing liability often requires the court to examine not only the systems a manufacturer has in place to produce its products, but also the systems it has in place to inspect and test its products before being shipped to consumers. A manufacturer will be liable for foreseeable injuries or damage caused by product defects that originate from its failure to employ reasonable systems of manufacture, inspection or testing.

• Negligent Failure to Warn:

Manufacturers have a duty to properly warn you of dangers inherent in the use of their products. This duty to warn is a continuing duty. Manufacturers must warn you of dangers that are known not only at the time of sale, but also of dangers discovered after the product has been sold to you and delivered. The nature and scope of a manufacturer’s duty to warn varies with the level of danger resulting from the ordinary use of the product. Thus, not every conceivable danger must be communicated to you. Rather, the nature and extent of a manufacturer’s duty to warn will depend on what is reasonable in the circumstances. Typically, however, the more dangerous a product is, the greater the onus is on the manufacturer to warn you of danger.

Product Liability: Defences

There are several defences that can be raised by a manufacturer that can absolve it of any wrongdoing. In addition to showing that you knew of and accepted the risk of injury caused by the manufacturer’s product, a manufacturer may also defend itself by asserting that:

• The defect in the product’s design, manufacture, or labeling was not the cause of your injury;
• That you contractually waived your right to sue; or
• That there was an unforeseeable, intervening act or event which caused your injury.

A manufacturer may also defend itself by asserting that you were contributorily negligent for your own injuries and should be held partly responsible for your loss. This defence does not absolve the manufacturer from liability completely, but a finding of contributory negligence may reduce the amount of damages that must be paid to you on account of your injuries. The availability of these defences are fact specific and may not apply in every case. If you are injured by a product defect, it is important to receive legal advice as soon as possible to ensure that your rights are protected.

Damages for Personal Injury Caused by Defective Products

When you suffer personal injury because of a product defect, you can recover damages in tort law for both non-pecuniary and pecuniary loss that are suffered as a direct result of the manufacturer’s negligence. Damages for non-pecuniary loss aim to compensate you for the pain and suffering that results from the product defect that caused your injury. The amount of compensation that you may be entitled to for pain and suffering depends on a variety of factors including, but not limited to:

• Your age;
• The nature of your injuries and their prognosis; and
• The overall impact your injuries have had on your quality of life.

In addition to compensation for pain and suffering, you may be entitled to compensation for the following pecuniary losses:

• Past and future wage loss;
• Past and future treatment and care costs; and
• Compensation for your lost capacity to earn income in the future.

As best as possible, tort damages for non-pecuniary and pecuniary loss aim to put you in the position that you would have been in had the injury or loss not occurred. If you have been injured by a defective product, it important to seek legal advice as soon possible so that you receive fair compensation for your injuries.

Important Deadlines:

In British Columbia, most personal injury claims arising from a defective product must be brought within two years from the date of injury. Claims brought outside this timeframe may result in you being unable to receive compensation for your injuries. Thus, it is important to seek legal advice as soon as possible to ensure that you have complied with the deadlines applicable to your claim.  

At Zacharias, our product liability lawyers are here to protect your rights after you have been injured by a defective product. We are experienced in negotiating settlements with manufacturers and litigating serious product liability claims in court when negotiations fail.

This is provided as information only. It should not be construed as legal advice. You should consult with a lawyer to provide you with specific advice for your own situation. For more information on product liability and to discuss your specific circumstances, please contact Zacharias today. Our product liability lawyers at Zacharias have experience bringing forward these types of actions and are here to provide you with a knowledgeable and objective opinion with respect to your claim.