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

FDCC Quarterly, Fall 2004 by Churchill-Smith, Bruce

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.