Area of Law: Personal Injury
Answer # 481
Product liabilityRegion: Ontario Answer # 481
If you suffer a physical injury or if your property is damaged as a result of a product you have purchased, you can seek compensation from both the store that sold you the product and the company that manufactured the product. Depending on your injury, you may be compensated for your medical costs, financial losses, and for pain and suffering.
You should check if the product came with an express warranty or guarantee either from the store or the manufacturer. If it did, you may be entitled to a refund or some other form of compensation by contacting the store or the manufacturer and explaining your problem.
If product does not have a warranty
If you discover that the product did not come with an express warranty, or if you are told by the seller or the manufacturer that the defect you have experienced is not covered by the warranty, you may still be entitled to compensation. You should begin by contacting the store where you purchased the item. Under the Sale of Goods Act, stores have three legal obligations to their customers, regardless of whether the product came with a specific warranty or guarantee.
First, stores are legally required to sell products that are suitably fit for their purpose. This means that the product you purchased must function in the way that it is supposed to function.
Second, if you bought the product based on a description, such as by catalogue, or if you bought the product based on a sample, such as buying carpet, the goods you receive must correspond to that description or sample.
And third, if the goods are bought by description, such as by catalogue, they must be fit to be sold.
If a seller violates any of these obligations, you are entitled to cancel the contract and receive a refund. If the store is unwilling to refund your money or otherwise compensate you, or if they insist that you contact the manufacturer, tell them that under the Sale of Goods Act, they are required to handle your complaint.
Contacting the manufacturer
Although the store where the product was purchased should be your main focus, there are a few instances where you may want to contact the manufacturer. First, you may want to contact the manufacturer simply to warn them about the defective product. Second, if a store is completely unwilling to handle your complaint, you may have to call the manufacturer and explain your problem to their customer service department. Third, if you did not personally purchase the product, for example if you bought it second hand, a manufacturer will be your only avenue for compensation. If this is the case, the store where the product was purchased does not have any obligations to you under the Sale of Goods Act.
Obligations of consumers to use products properly
Although you may have been injured or your property may have been damaged as a result of a defective product, you may be prevented from seeking compensation if you contributed to the injury or loss. For example, you cannot seek compensation if you failed to follow the safety instructions or the directions, or if you used the product in a way that it was not intended to be used.
If you have been injured by a product or if your property has been damaged, you should begin by writing a letter to the store explaining your problem and asking for specific compensation.
Compensation in a negligence claim
If the store refuses to compensate you, and you cannot get satisfaction from the manufacturer, your only recourse may be to start a civil lawsuit claiming negligence in the manufacture of the good. If the damages are small enough, you may be able to pursue this in Small Claims Court without a lawyer. You will have to prove there was a failure to exercise reasonable care in the design or manufacture of or instructions for the product that resulted in injury to a foreseeable user or your property. If there was an unintended defect in the way the product was made, a court will still likely hold the manufacturer responsible since its processes or employees should have caught the error.
You may also be able to sue when a retailer, distributor, or manufacturer recklessly or carelessly makes false statements about the safety or use of the product. This is called a negligent misrepresentation. The court will look closely to see if you relied on that statement and that it caused you damage.
Defective products and recalls
A product recall occurs when there are safety concerns due to a product being either defective or potentially harmful. A recall requests the return of the product to the manufacturer or seller, and it may be removed from the market altogether, or, modified or corrected. There are a wide range of products that may be subject to defects or product recalls, including:
- baby stroller, cribs and playpens
- children’s toys
- medical devices and equipment
- prescription drugs
- automobiles, automobile parts, truck tires
- space heaters
- other household items
If you or someone you care about has experienced a loss or injury due to a defective or unsafe product, contact our preferred Personal Injury experts and see who’s right for you. They offer a free consultation and do not charge up-front fees:
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