Product Recalls are not Proof of Negligence: Johansson v General Motors of Canada Limited

by John McKiggan

Defective Products and Negligence

If a defective product is recalled does that prove that the product was negligently manufactured? That was one of the issues that Justice Murphy of the Nova Scotia Supreme Court had to decide in the recent case of Johansson et al v. General Motors of Canada Limited.

Driver Injured in Car Accident

The Plaintiff driver was seriously injured in a single vehicle accident when her car went off the road while she was trying to negotiate a left hand turn.

Several years after the accident the car she was driving, a Chevrolet Lumina, was recalled because of a defect in the pinion bearing in the power steering.

The case was set down for a trial before a jury. After the Plaintiff finished leading their evidence, the Defendants made a motion for non-suit. Essentially, the Defendants claimed that there was no evidence on which the jury could find that the Plaintiff’s Claim could succeed.

Defect Caused Crash

Justice Murphy found that the evidence of the product recall was prima facie evidence that the vehicle was defective. Justice Murphy also found that there was evidence that the defect had caused the accident.

Crash Caused Injuries

Finally, Justice Murphy concluded that the Plaintiff’s injuries were caused by the accident. Had the Plaintiff filed a claim in contract alleging that the Defendants had sold her a defective product then it appears that her claim would have been successful.

However, Justice Murphy noted that the Claim was pleaded in negligence.

In a negligence case the Plaintiff must prove that the Defendants breached the relevant standard of care. In other words, did the Defendant do something a reasonable person (or in this case a reasonable company) would not have done? Or did the company fail to do something a reasonable company would have done. In any negligence claim, the plaintiff bears the burden of proof.

Failed to Prove Standard

Justice Murphy found that a product recall does not, by itself, establish the applicable standard of care or that the standard was breached.

In commenting on the standard of proof for product liability claims, Justice Murphy stated:

“In the context of product liability, it is clear that the trial judge is responsible for informing the trier of fact that the applicable legal standard of care on the defendant was “to use reasonable care in the circumstances and nothing more” (Phillips at para. 49). In my view, it is irrelevant whether the translation or application of that standard to the facts is characterized during trial as a question of mixed fact and law or as a question of fact, because in either case, the responsibility for this translation falls on the trier of fact. The trial judge may instruct the trier of fact on the appropriate factors that may be considered-for example, the defendant’s expertise, the riskiness of the product, the defendant’s knowledge of that risk, industry standards, et cetera-but it is ultimately for the trier of fact to apply the standard of care in the circumstances and determine whether the defendant’s conduct breached that standard.

In this case, the plaintiff presented no evidence addressing the standard industry practice of an automobile manufacturer, assembler or distributor with respect to parts supplied by other parties. Such evidence might include answers to the following questions: Is it industry practice for a manufacturer, assembler or distributor to test such parts? If so, what kind of testing is normally performed? Does the testing depend on the type of part and the level of risk posed by a failure of the part? Would a standard manufacturer, assembler or distributor be expected to discover an improperly crimped lower pinion bearing, such as the alleged defect in this case?”

What does it mean?

The plaintiff always has the burden of proving their claim at trial. So it goes without saying that the plaintiff (or their lawyer) must know exactly what facts they will need to prove to establish prove each element of the pleaded causes of action.

When filing a lawsuit involving a claim that a product is defective, it is important to examine all the facts to determine whether there are different types of claims that can be pleaded (for example breach of contract as well as negligence).

Just because a product has been recalled for safety reasons does not automatically mean that a person who has been injured by the product is entitled to compensation. Consumers should consult with a lawyer to learn what their rights are, whether they may be entitled to compensation, and what they need to prove in order to establish their right to be compensated.

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