5. A Manufacturer’s and Supplier’s Duty to Warn
Rule: a manufacturer has a duty to warn of any dangers inherent in the use of its products that are known or ought to be known at the time of sale- warning must be reasonably communicated and clearly describe the danger
Lamber v Lastoplex Chemicals (1971) SCC
Rule: manufacturers duty to warn extends to dangers discovered after the product has been sold and delivered
Rivtow Marine v Washington Iron Works
- note: duty to warn is traceable to “neighbour principle” in Donoughue v Stephenson
Rule: where consumer is relying upon a “learned intermediary” whose knowledge canbe said to approximate that of manufacturer, a warning to the ultimate consumer may not be necessary, and manufactureres duty to warn may be met by informing the intermediary
Hollis v Dow Corning Corp (1995)SCC- in failing to warn surgeon of risk of post surgical ruputre of silicone breast implants, manufacturer was held liable to recipient (test applied: would a reasonable person in Ms. Hollis’ circumstances have consented to the surgery if she had known the risks?)
Rule: suppliers are required to warn of risks which they know or ought to know
Lem v Borotto Sports Ltd. (1976) Alta. CA
- in considering whether concumers have been adequetly informed, the totlity of a muanufacturers marketing and promotional activities will be considered - a manufactuere may be held liable despite providing adequate warning if that warning has been obscured or undermined (Buchanan v Ortho Pharmeceutical)
- duty to warn re: dangers of misuse also exists, duty increases as degree of danger resulting form misuse increases (Lem)
IX THE STANDARD OF CARE
- 2 stages of analysis
1. what is the standard of care that the defendant is required to meet, and what factors should be considered in determining if it was breached? (ques’n of law)
2. on the facts of the case has the P provent hat the D breached the required standard of care?
1. The Common Law Standard : The Reasonable Person Test
Arland v Taylor [1955] - the standard of care by which a jury is to judge the conduct of parties in the care that would have been taken in the circumstances by “a reasonable and prudent man”
- note: standard is an objeective one
- takes into account knowledge, training, and experience that D or class of reasonable persons would know or have in like circumstances
- definition of reasonable man -mythical creature of the law whose conduct is the standard by which the courts measure the conduct of all other people. Not an extraordinary or superhuman creature, normal intelligence who makes prudence a guide to his conducr. Does nothing that a prudent person would not do, acts in accord with general and approved practice. Conduct is the standard adopted in the community by persons of ordinary intelligence and prudence.
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