Product Liability lawyers working on litigation are generally understood to encompass representation of product designers, suppliers, manufacturers, wholesalers, distributors, retailers, end users (including both corporations and individuals) and their respective insurers in civil proceedings alleging personal injury or economic loss resulting from alleged defects in the manufacturing or design of a product, or failure to warn of dangers inherent in the use of a product.
It also encompasses advising manufacturers and others within the distribution chain on advertising, marketing, regulatory and recall requirements related to their products.
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When consumers buy products, and if they are unsatisfied with the products, or if it is defective, or if personal or property injury or damage was caused by the product, the seller, distributor, or manufacturer may be held liable under product liability.
Hence, court actions may be instituted by the plaintiff (the injured customer or customer) against the defendant (the seller, distributor, or manufacturer) where either party may be represented by a product liability lawyer.
These specialised lawyers concentrate on pursuing litigations, which would include advising the plaintiff on their possible claims or advising the defendant on the possible defenses, representing them before the court, and the preparation of pleading and other court documents.
There are different kinds of defects where product liability may arise. As a plaintiff in a litigation, the specific defect/s must be proven by convincing evidence, and a product liability lawyer can help in preparing the evidence to support such cases.
The following kinds of defects are:
Defects in design are flaws of the product design or its specifications itself. These defects occur during the product planning by its creators and before manufacturing or the mass-production of the said product. As a plaintiff, it must be established that the design could have been altered to minimise or totally prevent an injury or damage from happening by using the product.
While defects in design are defects before the production of the product, manufacturing defects, on the other hand, manifests after the production. Defects in manufacturing may result when a product is manufactured not in accordance with the industrial standards due to human or mechanical error or negligence. Here, it must be shown that the design or specification of a normal-functioning product is not at par with the product that was bought by the consumer-plaintiff.
Generally, marketing defects occur during the selling and marketing of the defective products. It comes on different forms, such as a (1) breach of warranty, and (2) warning defects. When alleged, the plaintiff must establish that there was deception on the part of the seller or distributor, and the injury or damage was caused by such deception.
Product liability laws ensure that the products commercially marketed in Canada meet the statutory safety standards accordingly set for each product, and that consumers who suffered injuries or damages caused by the negligence of a seller, distributor, or manufacturer are properly compensated. In Canada, these laws may be found in common law on torts and damages, and in contracts for some instances. In Quebec the governing law is its Civil Code provisions on negligence and torts.
Therefore, as a plaintiff, it is important to refer to a product liability lawyer on the appropriate law, since other considerations would depend on it. However, there are some commonalities on these laws, such as the exclusion of intangible products that product liability may be sued upon, and that the standard of product liability will be based on the time that the product was released on the market and not at the time that the injury occurred.
In an action for recovery of damages, the following persons may be held liable and be named as the defendant:
Manufacturers or Production Companies (if separate from the Product Owner)
Inspectors and Certifiers (either public or private entities)
Sellers which include Importers, Wholesalers, Distributors, and Retailers
Commonly, when an injury occurs and a plaintiff will sue on the ground of product liability, a suggested course of action by a product liability lawyer would be a civil action for damages, sometimes called a tort case. In this case, the following requisites must be established by any supporting evidence:
Defendant's duty of care to the plaintiff with regards to the product;
Defendant's product was defective, unreasonably injurious, or dangerous;
Defect is foreseeable and was already present before the plaintiff bought the product; and
Defect of the product is the cause of or contributed to the injury of the plaintiff.
The said civil action may also be based on a contract, when a contract exists between the plaintiff and the defendant. Hence, the law on contracts will apply, in addition to what has been stipulated in the contract.
Notably, the recoverable general damages now have an amount limit, except for other kinds of damages, such as special damages, and non-punitive damages.
In addition to a civil action, the penal clauses of the Hazardous Products Act, Food and Drugs Act, and the Consumer Packaging and Labelling Act may also be used to institute a criminal action against the defendant. In most cases, a criminal case must be instituted independently (or separately) from the civil action.
According to the statute of limitations, an action for damages will prescribe if not filed within two years. As such, it is important to consult with a product liability lawyer to timely file the same.
A plaintiff in an action for damages based on product liability is not the only party that a product liability lawyer may represent – the defendant may also be assisted by a product liability lawyer. As such, the following are some of the possible defenses available to the defendant:
When the plaintiff alleges lack of due diligence, the defendant may rebut such allegation by presenting evidence that they have exercised due diligence in the design, production, manufacturing, and marketing of its products, according to the statutory standards set by the government bodies and its regulations. Defendant may also claim that the expected duty or diligence of the plaintiff is beyond what is reasonable based on industrial standards.
Defendant may propose that the moment the plaintiff bought the product, they have already assumed all kinds of risk imposed on it, such as the possibility of being injured through its normal use. This is based on the principle that a reasonable person assumes the risk, when after having been properly informed of it, still bought the product.
The defendant may also reverse the situation – that the cause of the injury are the acts of the plaintiff themself and not by the product. It can be alleged that the plaintiff either modified the product, causing its defects, or that the plaintiff mishandled the product, or that the plaintiff used it in a manner other than for its original purpose.
Scroll down below for a list of the best Lexpert Ranked product liability lawyers in Canada, who are equally experienced in representing both plaintiffs and defendants alike.