You have the right to file a lawsuit against a product’s manufacturer, designer, or retailer/distributor if you are injured by a defective product. A product recall signals that there is a defect, risk, or safety hazard associated with a product. So, does a product recall mean you automatically have the right to sue for compensation?
Not necessarily. A product recall can certainly be relevant evidence, but on its own it’s not enough to form the basis of a product liability lawsuit. The right to sue for compensation typically only arises if you have suffered loss or damage as a result of using a defective product, whether a product recall has been issued or not.
Understanding defective product law
Manufacturers are responsible for ensuring that their consumer products honour all the public safety standards and are designed to avoid safety hazards. They are also responsible for warning consumers of any dangers associated with use of the product, and they are not allowed to make false statements about the safety or use of the product.
Failure to satisfy any of those legal duties shows negligence and gives the consumers the right to file a lawsuit against all the negligent parties involved to hold them accountable for loss and damage caused by using the product (for example, if you or a or a loved one was injured or killed due to a defective vehicle, prescription medication, car seat, toy, household appliance, etc.).
The clincher is that there must have been some harm or damage caused as a result of the flawed product. That provides the legal basis for you to sue the manufacturer in negligence and receive personal injury compensation, which can include lost income, lost future earning potential, reimbursement for medical bills and other out of pocket expenses, and compensation for your pain and suffering.
How a product recall can impact a personal injury lawsuit
Product recalls occur when there are concerns that a product is defective or potentially flawed. It indicates that there is a potential issue, but does not necessarily mean that the product is hazardous or poses a safety risk. It depends on the nature of the product, the nature of the issue, and how the recall is categorized.
When a defect or flaw becomes apparent and a product recall is issued, the manufacturer is responsible for notifying consumers and taking corrective action. The product may be pulled from the market altogether, or it may be that the product needs modification or repair to correct the issue. The manufacturer will offer to repair, replace, or refund, depending on the issue with the product.
As mentioned above, the fact that a product recall has been issued does not automatically give you the right to sue for negligence. The general rule is that you or a loved one must have suffered personal injury as a result of using the defective product to give rise to the legal basis to sue the manufacturer.
If you have suffered harm, the product recall can serve as valuable evidence in support of your negligence claim. You should save the product recall notice(s) and save the defective product if at all possible, as it too will provide crucial evidence in your case.
On the flip side, it is important to understand that you can bring a product liability lawsuit if you have suffered personal injury, even if no product recall was issued. In other words, a product recall is not a necessary precondition to suing a manufacturer. There are other ways to show that a product is defective.
A few more points about product recalls to be aware of:
The manufacturer can’t rely on the fact that it issued a product recall as a defence to your personal injury claim, subject to the next point.
The manufacturer may be able to rely on the product recall if you were made aware of it and continued to use the product regardless of the known risk or hazard. The manufacturer can argue that you voluntarily assumed the risk of harm in that situation, which is a complete defence to a personal injury claim. Or, the manufacturer can argue that you were contributorily negligent and should bear some responsibility for the harm you suffered. In the latter situation, you remain entitled to compensation, but it will be reduced.
Where to find information about product recalls in Canada
The Government of Canada posts recall notices in four different product categories:
The Government of Canada also maintains a searchable list of product recalls, advisories, and safety alerts.
Who To Turn To If You Have A Defective Product Liability Claim
The law firm of Kelly Greenway Bruce can help file a product liability lawsuit to get compensation for the damages you or a loved one suffered due to a defective product.
Product manufacturers are usually large corporations that have strong resources to dodge defective product lawsuits. You can gain an advantage by hiring an expert personal injury lawyer with a track record of obtaining favourable verdicts and settlements for our past clients.