Product Liability

Product liability law in Canada underwent a dramatic transformation with the Supreme Court of Canada’s decision in Hollis v. Dow Corning Corp. This 1995 decision found Dow Corning liable for the medical problems of the Plaintiff who suffered many health problem after her breast implant ruptured. This case is important not only for breast implants but for all product liability cases. It has changed the standard that the court applies and may make it easier than ever before for parties injured due to the negligence of manufacturers to sue.

In the Dow chemical case, that company was aware for a number of years of unusual ruptures in its implants but did not pass this information onto the medical community for two years. The court felt that this was a breach of Dow’s duty to warn the doctors about these ruptures. Also, the doctors had a duty to warn Ms. Hollis of the potential dangers.

In this case, the court changed the test from the previous objective one in determining what effect a proper warning from a manufacturer would have had on someone such as Ms. Hollis. The test was, whether a reasonable person would have consented to the use of the product such as the breast implants even if fully aware of the risks. The court threw out that test and replaced it with a subjective one. The new test is whether or not that individual Plaintiff, in the Dow case, Ms. Hollis, would have consented to the procedure if adequate warnings had been given to the doctor by Dow which in turn would have been passed on to her prior to her making her decision.

The court for policy reasons decided that it was important to now hold manufacturers to a strict standard of warning consumers about the potentially dangerous consequences arising from their products. The duty of the manufacturer is accordingly not only to give proper and clear notice of the potential dangers that might arise from the use of its product, but to also continue to pass on those warnings even after the product has been sold. An example might be by means of newspaper advertisements warning the public and the industry of newly discovered problems with one’s own product. It is important to note that these problems may not even be very common. If the risks are very small but the danger is great, the warning still must be given. If they are not given, the manufacturer may very well be found liable for damages suffered by the Plaintiff. This is based upon the legal concept that the Plaintiff never would have consented to the use of the product such as buying it, installing it, using it, drinking it, sitting on it, riding in it, if it had known that there was a potential danger.