3) Reasonable Care in Design

There have been very few appellate decisions on the duty to design products with due care but the obligation is well established in Canadian product liability law. [Note 14: Tabrizi v. Whallon Machine Inc. (1996), 29 C.C.L.T. (2d) 176 (B.C.S.C.).] Manufacturers have a duty to make reasonable efforts to design products that are reasonably safe for their intended purpose. American courts have identified two tests to determine if the design of a product is defective. The first focuses on the reasonable expectations of the consumer. If the product is not as safe as a consumer might reasonably expect, the design is defective. This test has, however, proved to be very difficult to apply in a fair and predictable manner. The reasonable expectations of consumers in respect of some products may be unrealistically high and in respect of others it may be unduly low. The test also fails to consider if there is an alternative and safer design available. The second test, which is favoured in Canada, is a risk-utility analysis that seeks to determine if the utility of the product's design outweighs the foreseeable risks of the design. [Note 15: The utility-risk analysis has been favoured by the American courts and has recently been adopted by the American Law Institute in its Restatement of the Law: Torts - Products Liability (St. Paul, Minn.: American Law Institute, 1998).]

The risk-utility test was applied in Rentway Canada Ltd. v. Laidlaw Transport Ltd. [Note 16: (1989), 49 C.C.L.T. 150 (Ont. H.C.J.).] The case involved a head-on collision between two trucks when both of the headlights of one of the trucks failed. The defendant had designed the lighting system of that vehicle. Flying rubber from a tread separation of a tire knocked out one headlight and, because both headlights were on the same circuit, the other one also failed. The plaintiff claimed that the two headlights should have been on independent circuits, in which case one headlight would have remained on. The trial judge assessed the safety of the design on a risk- benefit analysis and decided the design was defective. Consideration was given to the degree of danger arising from the design, the nature of the product, the utility of the design, the availability of a safer design, and the functionality, the cost, and the risks of that alternative design. The ultimate question was whether or not, in the light of these factors, the product was reasonably safe. The Court held that the danger of having both headlights on a single circuit and the availability of a functional and affordable alternative design outweighed the utility of the single circuit system used by the defendant. [Note 17: The plaintiff's claim failed on an absence of proof of cause-in-fact. It was affirmed on that basis by the Ontario Court of Appeal: Rentway Canada Ltd. v. Laidlaw Transport Ltd., [1994] O.J. No. 50 (C.A.).]

Sometimes a poor design does not cause an accident but it does increase the harm suffered by the plaintiff if an accident takes place. This issue arises in cases dealing with the "crashworthiness" of products such as motor vehicles and aircraft. The same kind of risk-benefit analysis is called for to decide if reasonable care has been taken to minimize the seriousness of injuries caused in an accident. A balance must be drawn among a number of factors, including the foreseeable danger, the gravity of the danger, the expense and availability of measures to improve the crashworthiness of the product and the impact of those measures on the utility of the product, and its attractiveness to consumers.

CHAPTER 3, SPECIAL TOPICS IN NEGLIGENCE

C. THE DOCTRINE OF INFORMED CONSENT TO MEDICAL TREATMENT

In the latter part of the twentieth century, the nature of the relationship of physician and patient evolved from an authoritarian or paternalistic model to a more egalitarian and participatory one. The authoritarian model is characterized by a physician who, while acting in what she perceives to be the best interests of her patient, largely dictates the appropriate treatment to an uninformed and acquiescent patient. [Note 18: The very use of the word "patient," rather than client or customer, captures the nature of the paternalistic physician-client relationship.] The participatory model treats the relationship between the physician and the patient as a partnership in which the patient plays an active role in understanding and controlling the course of her medical treatment. It promotes the patient's right of self-determination. Current medical practice is probably more subtle than either of these models, but the trend towards a participatory model is clear and it has been fostered and promoted by the courts by the doctrine of informed consent to medical treatment.

The key to a more balanced physician-patient relationship is to increase the information that the patient has about his illness, the alternative treatments that are available, and the risks and benefits of those options. A patient's right to self-determination cannot be exercised wisely unless he has sufficient information to determine what is in his own interests. The courts have, therefore, recognized that physicians not only have an obligation to diagnose and treat with due care, but they also have an obligation to inform their patients of the nature of their illness and the nature, risks, and benefits of the proposed treatment.

The landmark decision is Reibl v. Hughes. [Note 19: [1980] 2 S.C.R. 880.] In that case, the plaintiff was not told that surgery designed to unblock his carotid artery carried a significant risk of a stroke, a risk that manifested itself and left him partially paralysed. The Supreme Court imposed liability on the defendant surgeon for his failure to secure the plaintiff's informed consent. Liability was based on the tort of negligence. Consequently, the extent of the physician's obligation is controlled by an application of principles relating to the duty of care, the standard of care, and causation. [Note 20: There was some discussion before Reibl that a failure to secure an informed consent may lead to liability in battery on the theory that the consent to treatment was invalidated by the lack of information. The Court rejected this theory and confined battery in medical cases to situations where there is no consent at all or the nature and character of the treatment is misrepresented by the physician.]