If you have been injured by a defective product in Ontario through no fault of your own, you have the right through product liability laws to seek compensation for medical costs, pain and suffering, and any related losses, such as income. However, the legal system puts the onus on the victim to prove that the product’s design or manufacture was defective in a manner that was unreasonably dangerous to the consumer and/or his property. Liability can also be established if the victim can prove that potential dangers relating to use of the product were not adequately expressed to the consumer (known as “failure to warn”).
This onus on the victim typically makes product liability cases exceptionally complicated and calls for skilled legal representation from an experienced defective products lawyer. With extensive product liability experience, Toronto personal injury lawyer Steven Polak can help you navigate through the complexities of your defective product case. Read on to learn more about defective product litigation and gain insight on how to protect your legal rights when injured by a defective product.
What Constitutes a Defective Product and Who is Liable?
Stringent requirements established under the 2011 Canadian Consumer Product Safety Act (CCPSA) and 2002 Consumer Protection Act (CPA), are supposed to make product defects compromising a person’s safety in Ontario and Canada-wide rare. However, defects can and do arise in any consumer product—from power tools, electronics, and vehicles, and from food, drugs, and medical devices—and some end up causing injury to Canadians. Among recent injury causing defective products you may have heard about are vape pens and cell phones.
While a manufacturer may seem like the most likely responsible party in a defective products case, all parties within the supply chain are potentially liable depending upon the source of negligence. Your defective products lawyer will be able to establish who may be liable among:
- Manufacturers
- Product inspectors
- Product certifiers
- Importers
- Distributors
- Retailers
- Installers
- Product owners (if not the claimant)
How Does One Prove a Defective Product Claim?
Defective product liability cases generally fall under three categories:
- Design Defects — product defects resulting from flawed design or unsound structure.
- Manufacturing Defects — Manufacturing process or inspection mistakes causing product defects. Faulty materials used in the product and defects caused by supply chain errors also fall under this category.
- Marketing Defects — mislabelling, improper instructions, reasonable warnings regarding usage — i.e., “failure to warn.”
With the onus on the victim for proving defective product liability, the court requires proof that the product was defective (and/or “failure to warn”), and that the defect was responsible in some manner for any injuries. The victim also needs to prove that the defect existed when the product was in the hands of the manufacturer, supplier, or retailer. While defendants in defective product cases typically try to prove that other factors were responsible for the injury(s), the victim can establish liability by proving that the defect was responsible to at least some extent.
In some cases, the defect within a product may not be readily apparent. Your defective products lawyer can examine your product and similar ones to ascertain whether there are inherent defects that caused the accident and injuries. In such cases, your lawyer will likely turn to the services of a product safety engineer or other relevant specialist to work on your behalf as an expert witness in the case.
Along with helping establish proof of product defect and injury causation, skilled defective product lawyers also investigate whether the product manufacturer and distributors followed the dictates of the CCPSA and CPA. Any failures on their behalf to follow these laws can bolster the claim, and, in some cases, serve as a primary basis for the claim, especially with regard to “failure to warn.”
What to Do If You Are Injured by a Defective Product
Naturally, the first thing to do when injured by a potential defective product is to seek medical attention, and make sure that you keep all records of your medical care. When reasonably possible and to the extent you are able, also:
- Report the incident to your work supervisors (if applicable) and to your insurance company.
- Write down as many details relating to the incident as possible. This should include information about any and all usage of the product, where you got it, events leading up to the incident, and anything that may have seemed odd or otherwise unusual prior to and during the incident.
- Try to get contact information from anyone involved in or who witnessed the incident.
- If you own the product, keep it and any parts, if damaged during the incident, as well as any documentation, such as sales receipts, warranty information, and instructions.
- Take photographs of the product and the location where the incident occurred.
- Save all correspondence and communications concerning the incident.
- Keep any documentation (medical bills, prescriptions, damage reports, etc.) relating to the accident.
- Do not provide any written or verbal statements about the incident until speaking to a defective products lawyer.
Time Limits for Making a Claim
Ontario law gives victims two years from the date on which a product caused an injury(s) to make a defective products claim. Sometimes accident victims do not realize right away that a product they were using may have been partly, or fully responsible, for the accident. Thus, if you are ever injured while using a specific product try to recall exactly how you were using the product and to what extent it may have contributed to the incident. If you were using the particular product in the manner in which it was designed to be used, the fault—and liability—could lay with the manufacturer or within the supply chain. If unsure, your best recourse may be to contact a skilled defective product lawyer.
Ontario personal injury lawyer Steven Polak is intimately familiar with all of the elements involved with defective product cases and has a solid record of helping defective product victims receive full and just compensation for injuries sustained because of them.
Contact Steven today at (905) 409-2438 to schedule your free personal consultation.