Personal Injury and Death Claims Due to Dangerous Products

It isn’t hard to think of a recent case involving a dangerous product.  

If you or your loved one has suffered a personal injury or been killed due to an unsafe product, there may be legal recourse.  In Canada, product safety is governed by the Canada Consumer Product Safety Act, which requires that the products companies produce and sell are not defective or unsafe.  If a product is dangerous, causing a personal injury or death, this can create both civil and criminal liability for those who have manufactured, imported, labelled, tested, advertised, and/or sold that product.

A dangerous product is defined as one that poses an existing or potential hazard to human health and safety, ranging from short-term or chronic health issues to death.  These hazards must be unreasonable, but also be caused by the normal and foreseeable use of the product.  If a product has proven to be dangerous, Health Canada can require its manufacturer to conduct a recall, or even conduct a recall itself.  In cases where the manufacturers and distributors are unwilling to comply, Health Canada can take them to criminal court, where they will face fines, prison, or both.

But while government action helps protect others from suffering due to a dangerous product, it doesn’t compensate you for the injury to yourself or a loved one.  In such a case, the manufacturer, suppliers, and retailers all face liability in a personal injury or wrongful death claim.

A wrongful death claim can be launched by any of the deceased’s close family members, including siblings, children, parents, grandparents, or spouses.  There are two types of damages that can be sought:

• Loss of guidance, care, and companionship: this is designed to compensate the family for the loss of the non-financial activities that the deceased would have otherwise undertaken.

• Financial losses: this covers the costs and loss of income associated with the wrongful death, including the costs the family incurred to visit the deceased in the hospital, medical costs, funeral costs, and new costs associated with the burden of providing care to the family in the wake of the wrongful death.  These awards can reach millions of dollars.

In the case of a personal injury, the civil liability falls under “product liability,” which has two categories, depending on whether a contract was signed upon the purchase of the product:

• Contract-based product liability: if a contract was signed, and the product turned out to be dangerous, the personal injury would be covered under a breach of contract.  This is because in Ontario all contracts regarding the sale or lease of a product are considered to have an implied clause that the product in question is safe for use.

• Negligence-based product liability: if there was no contract signed, the danger of the product can be considered to be negligence on the part of the manufacturer, distributor, or retailer.  A personal injury claim based on negligence would need to demonstrate that the defendants failed in their “duty of care” to ensure the safety of the product and warn of any possible risks, and that the injuries sustained were caused because of the failure to perform that duty of care.

In both contract and negligence-based personal injury claims, there are two primary types of damages awarded:

• General, or non-pecuniary, damages: these cover pain and suffering, along with the loss of enjoyment of life.  They are capped at approximately $360,000.

• Special, or pecuniary, damages: these cover costs, and loss of income, such as medical expenses, fees, and additional services required during recovery.  They are based on confirmable expenses calculated based on invoices, receipts, and expert testimony, and are not intended to exceed the costs incurred due to the injury.

An injury or death due to a dangerous product can be shocking and surprising, particularly when there was no reason to believe that the product may have been hazardous.  However, like in all personal injury claims, it is important to know the rights of you and your family, and that there you are entitled to compensation.
Author Robert B. Marks is a writer, editor, and researcher in Kingston, Ontario, who spent several years working as a writer and editor for the Queen’s University Faculty of Law.

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