Subjective tests and implied warranties: Prescriptions for Hollis v. Dow Corning and ter Neutzen v. Korn

• Author(s) / Creator(s)

  • Lewans, Matthew

• Introduction: Medical products have a therapeutic potential that can substantially improve the quality of life. Nevertheless, technological progress in the field of medicine is consistently met with guarded optimism. The benefits to be gained are often accompanied by unexpected risks. If injury occurs within the confines of ordinary commercial transactions, then a remedy might be swift and familiar. However, when medical products are distributed by medical professionals themselves, the legal relations prescribed by the Canadian authorities are altered to the patient's detriment. The general protection afforded to consumers may shift to shield from liability not only medical professionals, but may also inadvertently allow the manufacturer to avoid responsibility. The result is that the injured party may incur inordinate expense to initiate an action that may never yield compensation. This paper will examine the complex nature of the legal instruments commonly used to secure compensation for victims of dangerous medical products administered by doctors. The recent Supreme Court of Canada decisions in Hollis v. Dow Coming' and ter Neutzen v. Korn will be used to illustrate the ambiguities and inconsistencies that plague this area of jurisprudence. The discussion will focus on two instruments that are frequently engaged in actions involving dangerous medical products: the duty to warn and the implied warranty of fitness for purpose.

• Date created

  1996

• Subjects / Keywords

  • Canada
  • Product Liability--Medical Instruments & Apparatus

• Type of Item

  Article (Published)

• DOI

  https://doi.org/10.7939/R36Q1SX6V

• License

  © 1996 Matthew Lewans et al. This version of this article is open access and can be downloaded and shared. The original author(s) and source must be cited.