The daughter-in-law inhales over her bowl to smell the aroma. She gasps, but shakes it off. Then she takes a bite and her airways tighten up. She can’t breathe. Panicked, she waves to her husband to get his attention. He scrambles for his wife’s purse and her epinepherine auto-injector. He administers the medication and his wife recovers almost immediately. She has a severe allergy to peanuts, which are not an ingredient in chicken paprikash. However, in 2015, the Canadian Food Inspection Agency recalled a brand of imported paprika because of undisclosed peanuts. The failure to disclose the peanuts in a normally peanut-free spice was a violation of the manufacturer’s duty of care. Duty of care is a standard used to determine negligence and applies to cases of product liability, like with the peanut-laced paprika.

What is duty of care?

Duty of care is a legal obligation established with the special relationship between a service provider or retailer and the consumer. Duty of care requires that the service provider or seller acts in a manner that a reasonable and prudent person would. A doctor has a duty of care for her patients and must tell her patients all the facts about their health, good and bad, as well as treatment options. A teacher has a duty of care for his students. When they’re in his class, the teacher looks after them like a prudent parent would.

Manufacturers and retailers have a duty of care to consumers and are required to exercise reasonable care. The manufacturer should create products that are safe under normal use and are free from manufacturing defects. Retailers have a duty of care to stock products that are safe and not defective. Retailers may not know that a product has problems, so establishing duty of care is more difficult in these circumstances. If retailers carry a product that might not be safe, even under normal use, like fireworks for example, they need to disclose the risk to customers as part of their duty of care.

Duty of care and negligence

In a product liability claim, establishing duty of care is the first step in proving a manufacturer or retailer’s negligence. Duty of care is not enough to prove negligence. The next step is to link the product’s defects to the consumer’s damages using the but for causality test. Fill in the blank: “I wouldn’t have experienced this/these ___(damages)___ but for __(product’s)___ defect.” If it is clear that the defective product caused harm, then it is time to take the final step: seek legal advice.

Seek legal advice to ensure proper compensation

Over 2,000 products were recalled last year because they were defective. The wife in the peanut-infused paprika illustration demonstrated just one of the ways defective products can harm consumers. Bacteria-laced salmon, strained prunes with rubber bits, baby pacifiers that could be a choking hazard and an acne drug that can cause birth defects are just some of the products on 2016’s list of product recalls. If you’ve experienced damages or injuries as a result of a defective product, it’s time to call a lawyer. You know how important it is to recoup your losses, so hiring an expert in product liability is a wise decision.

The lawyers at Mackesy Smye in Hamilton work with clients like you every day. We understand your needs and we get results. Click the button below to contact us today for your first no-cost, no-obligation consultation with a product liability solicitor and start the process of recovering your losses.