Hollis v. Dow Corning Corp. et al., (1995) 67 B.C.A.C. 1 (SCC)

• Judge: La Forest, L'Heureux-Dubé, Sopinka, Gonthier, Cory, McLachlin and Iacobucci, JJ.
• Court: Supreme Court (Canada)
• Case Date: February 02, 1995
• Jurisdiction: Canada (Federal)
• Citations: (1995), 67 B.C.A.C. 1 (SCC)

Hollis v. Dow Corning Corp. (1995), 67 B.C.A.C. 1 (SCC);

    111 W.A.C. 1

MLB headnote and full text

[French language version follows English language version]

[La version française vient à la suite de la version anglaise]

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Dow Corning Corporation (appellant) v. Susan Hollis and John Robert Birch (respondents)

(23776)

Indexed As: Hollis v. Dow Corning Corp. et al.

Supreme Court of Canada

La Forest, L'Heureux-Dubé, Sopinka, Gonthier, Cory, McLachlin and Iacobucci, JJ.

December 21, 1995.

Summary:

The plaintiff's silicone breast implant ruptured and had to be surgically removed. The plaintiff sued Dow Corning Corp. (Dow), the manufacturer of the implant, alleging negligence in the manufacture of the implant, and alternatively, a failure to adequately warn the medical profession or the public that the implants could rupture. The plaintiff also claimed against the doctor who performed the implantation, Birch, alleging negligent advice and negli­gent surgery.

The British Columbia Supreme Court allowed the action against Dow on the basis of negligent manufacture of the implant and assessed damages accordingly. The court dismissed the action against the implanting doctor. Dow appealed against the finding of liabil­ity. The plaintiff appealed the dam­age award and the dismissal of her claim against the manufac­turer for failure to warn of the risk of implant rupture. She also appealed the dis­missal of her claim against the doctor who inserted the implant.

The British Columbia Court of Appeal, in a decision reported 29 B.C.A.C. 108; 48 W.A.C. 108, overturned the trial judge's finding that Dow had negligently manufac­tured the implant, but dismissed Dow's appeal on the ground that Dow had failed to adequately warn concern­ing the risks of rupture. The court allowed the plaintiff's appeal against the implanting doctor and ordered a new trial to determine his liability. The court dismissed the plaintiff's appeal respecting damages. Dow appealed, arguing first that the warning it gave to the implant­ing doctor was adequate and suffi­cient to satisfy its duty to the plaintiff, and secondly, even if it did breach its duty to warn the plaintiff, that breach was not the proximate cause of her injuries.

The Supreme Court of Canada, Sopinka and McLachlin, JJ., dissenting, dismissed the appeal.

Courts - Topic 2107

Jurisdiction - Appellate jurisdiction - To make fresh assessment of evidence - The plaintiff's silicone breast implant ruptured - She sued the implant's manufacturer (Dow), alleging an inadequate warning respecting the dangers of rupture and negligent manufacture - The trial judge held Dow liable for negligent manufacture without ruling on the warning issue - The Court of Appeal overturned the finding of negligent manufacture, but found Dow liable for failure to adequately warn - The Supreme Court of Canada affirmed the decision, stating that the appeal court properly exercised its jurisdiction to make a fresh assessment of the evidence on the record without sending the matter back for a new trial - The court noted, inter alia, that the bulk of the critical evidence at trial was documentary, not testimonial, and the plaintiff had waited several years for final resolution of her claim - See para­graph 33.

Practice - Topic 8819

Appeals - Duty of appellate court re issues not determined by trial judge - [See Courts - Topic 2107 ].

Torts - Topic 4334

Suppliers of goods - Negligence - Manu­facturers - Causation - [See ninth, tenth, eleventh and twelfth Torts - Topic 4335 ].

Torts - Topic 4335

Suppliers of goods - Negligence - Manu­facturers - Duty to warn users respecting dangers - The Supreme Court of Canada stated that "it is well established in Cana­dian law that a manufacturer of a product has a duty in tort to warn consumers of dangers inherent in the use of its product of which it has knowledge or ought to have knowledge ... The duty to warn is a continuing duty, requiring manufacturers to warn not only of dangers known at the time of sale, but also of dangers dis­covered after the product had been sold and delivered ... All warnings must be reasonably communicated, and must clear­ly describe any specific dangers that arise from the ordinary use of the product ..." - See paragraphs 20, 21.

Torts - Topic 4335

Suppliers of goods - Negligence - Manu­facturers - Duty to warn users respecting dangers - The Supreme Court of Canada stated that "the nature and scope of the manufacturer's duty to warn varies with the level of danger entailed by the ordinary use of the product. Where significant dangers are entailed by the ordinary use of the product, it will rarely be sufficient for manufacturers to give general warnings concerning those dangers; the warnings must be sufficiently detailed to give the consumer a full indication of each of the specific dangers arising from the use of the product" - See paragraph 22.

Torts - Topic 4335

Suppliers of goods - Negligence - Manu­facturers - Duty to warn users respecting dangers - The Supreme Court of Canada stated that in the case of medical products (e.g., breast implants), the "... standard of care to be met by manufacturers in ensur­ing that consumers are properly warned is necessarily high ..." - See paragraph 23.

Torts - Topic 4335

Suppliers of goods - Negligence - Manu­facturers - Duty to warn users respecting dangers - The Supreme Court of Canada held that there was an important analogy to be drawn between duty to warn imposed upon the manufacturer of medical products and the doctrine of "informed consent" respecting the doctor-patient relationship - See paragraph 24 - "... The principles underlying the doctrine of 'informed con­sent' are equally, if not more, applicable to the relationship between manufacturers of medical products and consumers than to the doctor-patient relationship ..." - See paragraph 25.

Torts - Topic 4335

Suppliers of goods - Negligence - Manu­facturers - Duty to warn users respecting dangers - The Supreme Court of Canada stated that "in light of the enormous informational advantage enjoyed by medi­cal manufacturers over consumers, it is reasonable and just to require manufac­turers, under the law of tort, to make clear, complete and current informational dis­closure to consumers concerning the risks inherent in the ordinary use of their prod­ucts ..." - See paragraph 26.

Torts - Topic 4335

Suppliers of goods - Negligence - Manu­facturers - Duty to warn users respecting dangers - The Supreme Court of Canada stated that generally the duty to warn of dangers is owed by the manufacturer to the ultimate consumer - The court explained however, that the "learned intermediary rule" has developed whereby in excep­tional circumstances, a manufacturer may satisfy its informational duty to the con­sumer by providing a warning to a "learned intermediary" - See paragraphs 27 to 29.

Torts - Topic 4335

Suppliers of goods - Negligence - Manu­facturers - Duty to warn users respecting dangers - The plaintiff's silicone breast implant ruptured - The plaintiff sued Dow Corning Corp. (Dow), the manufacturer of the implant, alleging negligence for failing to adequately warn the plaintiff or her surgeon who did the implant operation of the risks of rupture - The Supreme Court of Canada held that the "learned inter­mediary" rule was applicable and Dow was entitled to warn the surgeon concerning the risks of rupture without warning the plain­tiff directly - However, Dow did not discharge its duty to the plaintiff by pro­perly warning the surgeon concerning the risk of post-surgical implant rupture and because of this failure, Dow was liable to the plaintiff for her injuries - See para­graphs 18 to 42, 62.

Torts - Topic 4335

Suppliers of goods - Negligence - Manu­facturers - Duty to warn users respecting dangers - The plaintiff whose silicone breast implant ruptured sued the implant's manufacturer (Dow), alleging breach of the duty to warn - Dow argued that the num­bers of "unexplained" ruptures were small and that such ruptures, being unexplained, were not a distinct category of risk of which Dow could realistically have warned - The Supreme Court of Canada rejected these arguments because both were based upon the assumption, which had no sup­port in Canadian law, that Dow only had the obligation to warn once it had reached its own definitive conclusions respecting the cause and effect of the "unexplained" ruptures - It was precisely because the ruptures were "unexplained" that Dow should have been concerned - Dow could have included an update in their product inserts pointing out that "unexplained" ruptures had occurred and a list of possible side-effects - See paragraph 41.

Torts - Topic 4335

Suppliers of goods - Negligence - Manu­facturers - Duty to warn users respecting dangers - The plaintiff whose silicone breast implant ruptured sued the implant's manufacturer (Dow), alleging breach of the duty to warn - Dow argued that a reason­able woman in the plaintiff's position would have consented to the surgery des­pite the risk and therefore the failure to warn by Dow was not the proximate cause of the plaintiff's injury - The Supreme Court of Canada held that the test to be applied in determining whether the plain­tiff would have consented to having the implant even if she had been warned of the risks was a subjective test - The court applying the subjective test, held that the plaintiff would not have consented to the implant had she known of all the attendant risks - See paragraphs 43 to 52.

Torts - Topic 4335

Suppliers of goods - Negligence - Manu­facturers - Duty to warn users respecting dangers - The plaintiff whose silicone breast implant ruptured sued the implant's manufacturer (Dow), alleging breach of the duty to warn - Dow questioned whether the surgeon would have warned the plain­tiff even if Dow had properly warned the surgeon - The Supreme Court of Canada held that a manufacturer could not escape liability for failing to give a required warning by simply presenting evidence that even if the doctor had been warned, the doctor would not have informed the patient - "The learned intermediary rule provides a means by which the manufac­turer can discharge its duty to give adequate information of the risks to the plaintiff by informing the intermediary, but if it fails to do so it cannot raise as a defence that the intermediary could have ignored this information" - See paragraphs 53 to 61.

Torts - Topic 4335

Suppliers of goods - Negligence - Manu­facturers - Duty to warn users respecting dangers - The plaintiff whose silicone breast implant ruptured sued the implant's manufacturer (Dow), alleging breach of the duty to warn - Dow questioned whether the surgeon would have warned the plain­tiff even if Dow had properly warned the surgeon - The Supreme Court of Canada held that Dow's argument was based upon the assumption that to succeed in her claim against Dow, the plaintiff must prove that the surgeon would have warned her if Dow had properly warned him - The court held that this assumption was not well-founded and the plaintiff was not required to prove a hypothetical situation relating to her doctor's conduct, one moreover, brought about by Dow's failure to perform its duty - See paragraphs 53 to 61.

Torts - Topic 4335

Suppliers of goods - Negligence - Manu­facturers - Duty to warn users respecting dangers - The plaintiff whose silicone breast implant ruptured sued the implant's manufacturer (Dow), alleging breach of the duty to warn - Dow argued that a reason­able woman in the plaintiff's position would have consented to the surgery des­pite the risk - The Supreme Court of Canada held that the test for determining whether the plaintiff would have consented if she had been warned of the material risks by the manufacturer was a subjective test - The court discussed how this test differed from the objective test applied in negligence suits against doctors - See paragraph 46.

Torts - Topic 4345

Suppliers of goods - Negligence - Manu­facturers - Evidence and proof - [See tenth, eleventh and twelfth Torts - Topic 4335 ].

Torts - Topic 4468

Suppliers of goods - Defences - Products liability - "Learned intermediary rule" - [See sixth, seventh and tenth Torts - Topic 4335 ].

Cases Noticed:

Lambert v. Lastoplex Chemicals Co., [1972] S.C.R. 569, refd to. [para. 20].

Rivtow Marine Ltd. v. Washington Iron Works, [1974] S.C.R. 1189, refd to. [para. 20].

Setrakov Construction Ltd. v. Winder's Storage & Distributors Ltd. et al. (1981), 11 Sask.R. 286 (C.A.), refd to. [para. 20].

Meilleur v. U.N.I.-Crete Canada Ltd. (1985), 32 C.C.L.T. 126 (Ont. H.C.), refd to. [para. 20].

Skelhorn v. Remington Arms Co. et al. (1989), 99 A.R. 22; 69 Alta. L.R.(2d) 298 (C.A.), refd to. [para. 20].

McCain Foods Ltd. v. Grand Falls Indus­tries Ltd. et al. (1991), 116 N.B.R.(2d) 22; 293 A.P.R. 22 (C.A.), refd to. [para. 20].

Donoghue v. Stevenson, [1932] A.C. 562; [1932] All E.R. Rep. 1 (H.L.), refd to. [para. 21].

Shandloff v. City Dairy, [1936] 4 D.L.R. 712 (Ont. C.A.), refd to. [para. 23].

Arendale v. Canada Bread Co., [1941] 2 D.L.R. 41 (Ont. C.A.), refd to. [para. 23].

Zeppa v. Coca-Cola Ltd., [1955] 5 D.L.R. 187 (Ont. C.A.), refd to. [para. 23].

Rae v. Eaton (T.) Co. (Maritimes) Ltd. (1961), 28 D.L.R.(2d) 522 (N.S.S.C.), refd to. [para. 23].

Heimler v. Calvert Caterers Ltd. (1975), 8 O.R.(2d) 1 (C.A.), refd to. [para. 23].

Hopp v. Lepp, [1980] 2 S.C.R. 192; 32 N.R. 145; 22 A.R. 361, refd to. [para. 24].

Reibl v. Hughes, [1980] 2 S.C.R. 880; 33 N.R. 361; 114 D.L.R.(3d) 1, refd to. [paras. 24, 67].

Ciarlariello et al. v. Schacter et al., [1993] 2 S.C.R. 119; 151 N.R. 133; 62 O.A.C. 161, refd to. [para. 24].

Schloendorff v. Society of New York Hospital (1914), 105 N.E. 92 (N.Y.C.A.), refd to. [para. 24].

Canterbury v. Spence (1972), 464 F.2d (D.C. Cir. Ct.), refd to. [para. 24].

Buchan v. Ortho Pharmaceutical (Canada) Ltd. (1986), 12 O.A.C. 361 (C.A.), approved [paras. 25, 65].

Sterling Drug Inc. v. Cornish (1966), 370 F.2d 82 (8th Cir. Ct.), refd to. [para. 27].

Reyes v. Wyeth Laboratories (1974), 498 F.2d 1264 (5th Cir. Ct.), cert. denied (1974), 419 U.S. 1096, refd to. [para. 27].

Schenebeck v. Sterling Drug Inc. (1970), 423 F.2d 919 (8th Cir. Ct.), refd to. [para. 27].

Hoffman v. Sterling Drug Inc. (1973), 485 F.2d 132 (3rd Cir. Ct.), refd to. [para. 27].

Dunkin v. Syntex Laboratories Inc. (1977), 443 F.Supp. 121 (W.D. Tenn.), refd to. [para. 27].

Lindsay v. Ortho Pharmaceutical Corp. (1980), 637 F.2d 87 (2nd Cir.), refd to. [para. 27].

Timm v. Upjohn Co. (1980), 624 F.2d 536 (5th Cir.), cert. denied (1981), 449 U.S. 1112, refd to. [para. 27].

Stanback v. Parke, Davis & Co. (1981), 657 F.2d 642 (4th Cir.), refd to. [para. 27].

Walker v. Merck & Co. (1986), 648 F.Supp. 931 (M.D. Ga.), affd. (1987), 831 F.2d 1069 (11th. Cir.), refd to. [para. 27].

Plummer v. Lederle Laboratories (1987), 819 F.2d 349 (2nd Cir.), refd to. [para. 27].

Davidson v. Connaught Laboratories (1980), 14 C.C.L.T. 251 (Ont. H.C.), refd to. [para. 27].

Holmes v. Ashford, [1950] 2 All E.R. 76 (C.A.), refd to. [para. 28].

MacDonald v. Ortho Pharmaceutical Corp. (1985), 475 N.E.2d 65 (Mass. J.C.), cert. denied (1985), 474 U.S. 250, refd to. [para. 31].

Prudential Trust Co. v. Forseth, [1960] S.C.R. 210, refd to. [para. 33].

Davie Ship­build­ing Ltd. and Canada Steam­ship Lines Ltd. v. Canada and Robert Morse Corp. and Colt In­dus­tries (Canada) Ltd., [1984] 1 F.C. 461; 53 N.R. 50; 4 D.L.R.(4th) 546 (F.C.A.), refd to. [paras. 33, 93].

Nova, An Alberta Corp. v. Guelph Engi­neering Co. (1989), 100 A.R. 241; 70 Alta. L.R.(2d) 97 (C.A.), refd to. [paras. 33, 93].

Lewis v. Cook, [1951] S.C.R. 830, refd to. [paras. 56, 77].

McCue v. Norwich Pharmaceutical Co. (1972), 453 F.2d 1033 (1st Cir.), refd to. [para. 61].

Hamilton v. Hardy (1976), 549 P.2d 1099 (Col. C.A.), refd to. [para. 61].

Cobbs v. Grant (1972), 502 P.2d 1 (Cal. S.C.), refd to. [para. 67].

Snell v. Farrell, [1990] 2 S.C.R. 311; 110 N.R. 200; 107 N.B.R.(2d) 94; 267 A.P.R. 94; 72 D.L.R.(4th) 289; 4 C.C.L.T.(2d) 229, refd to. [para. 77].

McGhee v. National Coal Board, [1973] 1 S.L.T.R. 14 (H.L.), refd to. [para. 77].

Wilsher v. Essex Area Health Author­ity, [1988] 1 All E.R. 871; [1988] 1 A.C. 1074; [1988] 2 W.L.R. 557; 87 N.R. 140 (H.L.), refd to. [para. 77].

Just v. British Columbia, [1989] 2 S.C.R. 1228; [1990] 1 W.W.R. 385; 103 N.R. 1; 41 B.C.L.R.(2d) 350; 18 M.V.R.(2d) 1; 64 D.L.R.(4th) 689, refd to. [para. 89].

Koschman v. Hay (1977), 17 O.R.(2d) 557 (C.A.), refd to. [para. 90].

Chan v. Minister of Employment and Immigration (1995), 187 N.R. 321 (S.C.C.), refd to. [para. 91].

Jardine v. Northern Co-operative Timber and Mill Association, [1945] 1 W.W.R. 533 (B.C.C.A.), refd to. [para. 93].

Glow v. Paquin, [1932] 1 W.W.R. 737 (Man. C.A.), refd to. [para. 94].

Patterson v. Aldborough (Township) (1913), 11 D.L.R. 437 (Ont. C.A.), refd to. [para. 94].

Colautti Construction Ltd. v. Ottawa (1984), 5 O.A.C. 74; 9 D.L.R.(4th) 265 (Ont. C.A.), refd to. [para. 94].

Bank of Nova Scotia v. Dunphy Leasing Enterprises Ltd. (1991), 120 A.R. 241; 8 W.A.C. 241; 83 Alta. L.R.(2d) 289 (C.A.), refd to. [para. 94].

Fitzrandolph v. Fitzrandolph (1918), 41 D.L.R. 739 (N.B.C.A.), refd to. [para. 94].

McCarroll v. Powell, [1955] 4 D.L.R. 631 (Ont. C.A.), refd to. [para. 102].

Hunt v. MacLeod Construction Co., [1958] S.C.R. 737, refd to. [para. 102].

Statutes Noticed:

Negligence Act, R.S.B.C. 1979, c. 298, generally [para. 76]; sect. 2 [para. 102].

Authors and Works Noticed:

Cross on Evidence (7th Ed. 1990), pp. 112 [para. 82]; 113 [paras. 81, 82].

Fleming, John G., The Law of Torts (8th Ed. 1992), p. 143 [para. 74].

McCormick on Evidence (3rd Ed. 1984), p. 947 [para. 82].

Peppin, Patricia, Drug/Vaccine Risks; Patient Decision-Making and Harm Reduction in the Pharmaceutical Com­pany Duty to Warn Action (1991), 70 Can. Bar Rev. 473, p. 474 [para. 25].

Counsel:

D.J. Mullan, Q.C., and D.W. Donohoe, for the appellant;

Donald J. McKinlay, for the respondent, Susan Hollis;

James M. Lepp and William S. Clark, for the respondent, John Robert Birch.

Solicitors of Record:

Clark, Wilson, Vancouver, British Colum­bia, for the appellant;

Lang, Michener, Vancouver, British Col­umbia, for the respondent, Susan Hollis;

Harper, Grey, Easton, Vancouver, British Columbia, for the respondent, John Robert Birch.

This case was heard on February 2, 1995, before La Forest, L'Heureux-Dubé, Sopinka, Gonthier, Cory, McLachlin and Iacobucci, JJ., of the Supreme Court of Canada. The judgment of the court was delivered in both official languages, on December 21, 1995, including the following opinions:

La Forest, J. (L'Heureux-Dubé, Gon­thier, Cory and Iacobucci, JJ., concur­ring) - see paragraphs 1 to 63;

Sopinka, J., dissenting (McLach­lin, J., concurring) - see paragraphs 64 to 103.