Canada: Reminder To Retailers: You Are The Low-Hanging Fruit For Potential Plaintiffs

Last Updated: October 8 2014
Article by Andrea Gorys

In Nogueira v. O. Alasaly Pharmacy Ltd.,1 the British Columbia Supreme Court found the defendant pharmacy liable to the plaintiff who had suffered a severe burn from a medicated patch she bought to treat muscle pain. This case serves as a reminder to retailers that they can still be found liable, even where the specific cause of the defect is not proven, and even though the plaintiff may not have a strong case against the distributor and/or the manufacturer. It also illustrates that a retailer can be found liable even where there are no other recorded complaints for a product that has been purchased several million times.

The plaintiff had muscle soreness in her left thigh and purchased a box of analgesic patches at the defendant pharmacy, which had been distributed by Sanofi Consumer Health Inc. ("Sanofi"). The patches were intended to provide a cooling and heating therapy for muscle pain. The Court noted that the plaintiff read the instructions on the box and that there was no warning with respect to burns or the risk of burns.

Two hours after applying the patch, she felt pain and when she tried to remove the patch, her skin came off with it. She sought medical attention the next day. Ultimately the plaintiff suffered a significant burn that required surgery for a skin graft under general anesthesia.

Sanofi's senior director of marketing testified that the patches had been approved by Health Canada for sale over-the-counter, and that Health Canada had never requested a recall or a modification to the labelling. Moreover, out of 3,000,000 patches sold since 2007, the only burn complaint received by Sanofi was that of the plaintiff. The Court referred to the seminal decision of the Privy Council in Grant v. Australian Knitting Mills Ltd.,2 which concerned a plaintiff who contracted dermatitis after purchasing wool undergarments. In that case, the Court still found the defendant liable even though the company claimed that the plaintiff's complaint was the only one of 4.8 million products sold.

Despite being the product's only known burn injury, and although the plaintiff could not provide evidence regarding the cause of the defect, the Court held that it was entitled to draw an inference of defect, as long as the buyer could exclude her own actions as a cause of injury. Noting that the plaintiff had applied the patch to an area of her thigh without a wound or damaged skin, had removed it a short time later, and sought medical care soon afterwards, the Court was willing to draw an inference that it was defective, and therefore not of merchantable quality. The Court also found that the patch was not fit for its purpose, although the Court's analysis on the implied warranty of fitness is brief and conclusory.

It is notable that the plaintiff abandoned her claims against the product's distributors during trial. Although her reasons for doing so were not made clear in the judgment, it may be that the plaintiff was more likely to succeed against the retailer under the Sale of Goods Act, rather than against the distributors who had imported the product from a Japanese source. The grounds for the negligence claim against the distributor are unclear, and in any event, it is often simpler to prove a breach of warranty claim under the Sale of Goods Act, particularly given the low threshold for proof of defect set by the trial judge in this case.

One can contrast this decision with the decision in Griffiths v. Peter Conway Ltd.,3 where a plaintiff who contracted dermatitis from the seller's clothing was found to be particularly sensitive, and where an ordinary consumer would not have contracted dermatitis. The court in Griffiths held that the clothing was not defective, and the seller was not advised of the plaintiff's sensitivity, so the defendant could not be liable.

To similar effect is the recent Ontario decision in Crozier v. A & P Canada Inc.,4 where the plaintiff developed adult colonization botulism ("ACB") as a result of eating peanut butter containing clostridium botulism spores ("CB"). The plaintiff suffered from Crohn's disease. On the defendant's motion for summary judgment, the Court held that the implied warranty of fitness is not breached where an abnormal feature, pre-existing condition or idiosyncrasy was not disclosed to the seller. The Court found that the spores that caused the ACB would have been harmless save for her pre-existing condition, and this was the first and only case to find a link between ingestion of food and contraction of ACB.

There is no indication in the decision in Nogueira that the defendant argued that the plaintiff was uniquely sensitive to the patch, although it might have been a compelling defence in light of the decisions in Griffiths and Crozier.

Footnotes

1 2014 Carswell BC 1954, 2014 BCSC 1237 (B.C.S.C.).

2 [1936] A.C. 85 (P.C.).

3 [1939] 1 All E.R. 684 (CA).

4 (2010), 104 O.R. (3d) 605 (S.C.).

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

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