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

FDCC Quarterly, Fall 2004 by Churchill-Smith, Bruce

In certain circumstances, a manufacturer may satisfy its duty to the consumer by warning a learned intermediary of the risks inherent in the use of the product. This principal is applicable where a product is highly technical in nature and will be used only under the supervision of experts or where the consumer would not realistically receive a direct warning from the manufacturer. In such cases, an intermediate inspection of the product is anticipated and the consumer places primary reliance on the judgment of the learned intermediary, rather than the manufacturer.

This principle does not relieve the manufacturer of the duty to warn the consumer. The manufacturer is simply allowed to fulfill its duty by providing the relevant information to the learned intermediary. However, manufacturers cannot escape liability by arguing that the intermediary would not have passed the warning on to the consumer had it been provided. In Hollis, the plaintiff underwent breast implant surgery on the advice of her surgeon. The plaintiff's physician did not warn her of the risks of post-surgical complications or the possibility that the implants might rupture. The breast implants ruptured, and the plaintiff underwent a double mastectomy. The court held that the manufacturer was entitled to warn the physician concerning the risk of rupture, without warning the consumer directly. However, the court noted that the learned intermediary rule presumes that the intermediary is fully apprised of the risks, and is only effective when the manufacturer has taken adequate steps to ensure that the intermediary's knowledge of the risk approximates its own.

VII.

THE SCOPE OF THE DUTY TO WARN

The duty to warn encompasses dangers that are reasonably foreseeable and is a continuing duty that survives the sale of the product. Reasonably foreseeable dangers are those that are known, or ought reasonably to be known, to the parties involved in the manufacture or distribution of the product. If the court finds that the risk that materialized was not reasonably foreseeable, the defendant may escape liability for the failure to warn.

In Allard v. Manahan,15 Mr. Allard was struck on the head and killed by a nail from a power tool that he had rented from the distributor. It was alleged that the distributor, Manahan, failed to give adequate warning of the risk involved in operating the tool without the use of a special guard. None of the witnesses had ever seen or heard of an accident of the type that occurred. The universal practice was to use a standard guard only. It was apparent after the accident that the standard guard could not have prevented the accident that occurred. The court held that the risk that materialized was not a danger of a type or kind that anyone in the trade had foreseen, so the distributor was not liable.

The court has, in some instances, stretched the principle of foreseeability in order to compensate victims, particularly when the product is found to be inherently hazardous. The supplier of material for padded cells was found liable for failure to warn in Williams v. New Brunswick, Saint John.16 In that case, a prisoner in a cell set a fire that spread through a short term holding facility, killing twenty-one prisoners. The defendant, Chubb, designed and supplied the materials for the facility, including shock absorbent padding for the cell walls, which it covered with a heavy reinforced material. The combustion of the padding produced dense black smoke, hampering rescue efforts. The evidence supported the contention that the fire resulted from an open flame. Chubb argued that it was not foreseeable that a prisoner with both the means and inclination to get through the outer covering and ignite the padding would be placed in a padded cell by the police. The court disagreed, and held that Chubb had every reason to foresee the violent, anti-social behavior of inmates confined in padded cells including the ignition of fires and that it was negligent in failing to warn of the dangerous properties of the padding.