At the time of trial, the only defendants were Bauer Nike Hockey Inc. and Bauer Hockey Corp. (collectively referred to as "Bauer") and the CSA. Bauer designed and manufactured the helmet worn by More at the time of the incident, a Bauer HH5000L hockey helmet, while the CSA set the minimum standards for impact resistance applicable to ice hockey helmets in Canada and certified helmets that meet the standard.
Product liability claims against manufacturers framed in negligence can be made on three bases:
- defect in manufacture of the product (i.e., it was not manufactured in accordance with its design);
- defect in design (i.e., it was manufactured as intended but the design creates an unreasonable risk of harm that could have been reduced through the use of a reasonable alternative design); and
- failure to warn of all potential dangers associated with the use of the product.
More claimed that Bauer had a duty to consumers of the HH5000L helmet to design, manufacture, and distribute for sale only those helmets which were adequate to provide protection to the consumers from risk of serious head injury caused by foreseeable impacts by wearers of such helmets. Specifically, More alleged that it was foreseeable that a hockey player would impact the ice or boards at hockey arenas and that Bauer helmets ought to protect players from the risk of serious head injuries arising from that impact. More also claimed that Bauer knew or ought to have known that if it failed or neglected to carry out this duty, users of the HH5000L helmet could suffer serious head injury.
More further claimed that Bauer breached the duty described above and was negligent in:
- failing to design or manufacture a helmet that provided protection from serious head injury when used in ice hockey games;
- failing to provide sufficiently effective liners or impact attenuation lining material for the HH5000L helmet to provide such protection when the wearer of such a helmet collided with a hard object, such as the boards at an ice rink;
- designing the HH5000L helmet and testing it to meet CSA Standard criteria that it knew or ought to have known were inadequate to achieve protection from serious head injury; and
- manufacturing and distributing the HH5000L helmet for sale when it was inadequate to provide protection from serious head injury.
Duty of Care
The court agreed that as a manufacturer of consumer products, Bauer had a duty to take reasonable steps to ensure that its hockey helmets were safe for their intended use and that it must design products to minimize the risks arising from their intended use and to minimize the loss that may result from reasonably foreseeable mishaps involving the product.2
When setting out the law with respect to claims of negligent design, the court relied on an earlier decision of the British Columbia Court of Appeal, Harrington v. Dow Corning Corp.3 The first step is to determine whether the product is defective under ordinary use or, although non-defective, has a propensity to injure. The second step is to assess the state of the manufacturer's knowledge of the dangerous nature of its product to determine whether the manufacturer ought not to have manufactured or distributed the product or, conversely, whether it ought to have distributed only with an appropriate warning.
If the value of the product's use outweighed its propensity to injure such that distribution with a warning was appropriate, the third step is an assessment of the reasonableness of the warning. The last step is to determine individual causation and damages.
Bauer argued that in the case of ice hockey helmets, the general principles of negligent design are not easily applied, given that helmets are not inherently dangerous in the same way that some other products are and that helmets are meant to protect against an existing risk of harm.4 However, the court held that safety devices are inherently dangerous if they fail to provide reasonable protection when in normal use.5 This makes sense given that ice hockey players are required to wear helmets when playing hockey.
Standards of Care
When considering the standard of care required of a manufacturer in a negligent design claim, the court held that a manufacturer does not have to use the safest design available. Rather, a manufacturer will have met the requisite standard of care provided that it can be shown that the design chosen was reasonable in the circumstances.6 Indeed, the availability of an alternate design is an important consideration in the standard of care analysis, but it does not necessarily follow that a product will have caused an injury simply by virtue of the fact that there are dangers associated with its use. The user of a product still has an obligation to use the product carefully, including using any safety devices provided by the manufacturer.7
Causation and Liability
The court ultimately dismissed the claims in negligence against Bauer and the CSA. It concluded that the design of the HH5000L helmet offered a reasonable level of safety for rear impacts having regard to the risk of the wearer sustaining a serious head injury like a SDH while playing hockey. The court noted that Bauer was not an insurer, nor was it to be held to a standard of perfection.8
The court found as a fact that the immediate cause of More's SDH was a bridging vein tear. An important issue was whether such a tear resulted from linear or rotational forces. Much of the medical and biomechanical expert evidence in the case concerned the fact that hockey helmets are designed primarily to protect against linear forces, not rotational ones. The court noted that the expert evidence showed that the SDH was likely caused, at least in part, by rotational forces, as are most concussions. It would therefore seem that the plaintiff should have been able to make out a case of negligence against Bauer, since More's helmet, which was supposed to protect against head injuries, did not protect against the type of force which is commonly associated with head injuries.
The problem for the plaintiffs' case against Bauer was that there is no feasible way to design a helmet that protects against rotational force injuries. If there is no way to design and manufacture such a helmet, surely Bauer could not be faulted for failing to do so.
In addition, the plaintiffs ultimately argued that Bauer and the CSA breached their duty by failing to change the helmet testing standards and make them more stringent. However, the helmet worn by More at the time of the incident met both the current CSA standard and the more stringent standard proposed by the plaintiffs. Accordingly, the court held that this argument had no merit.
In order to prove causation, a plaintiff must prove that but for the negligent act of the defendant, the injury would not have occurred. In this case, the court held that because More's helmet was successfully tested to a more rigorous standard than that mandated by the CSA, the plaintiffs could not satisfy the 'but for' test.9
Additionally, the court held that More's injury was not reasonably foreseeable. The medical evidence was clear that it was exceedingly rare to suffer an SDH while wearing a CSA certified helmet.
The court was satisfied with the design of the HH5000L helmet, noting that there was no substantial likelihood of the alleged harm associated with its ordinary use, nor was it feasible to design the helmet in a safer manner to protect against such risk.10
Claim against CSA for negligent misrepresentation and failure to warn
It should be noted that the plaintiffs also claimed against the CSA for negligent misrepresentation and failure to warn. These claims pertained to a sticker on the HH5000L helmet which stated that the helmet was a "Certified Hockey Helmet", with the thrust of the argument being that the CSA did not provide enough information for the plaintiffs to make an informed choice of whether to use the helmet.
The court dismissed these claims, noting that a larger sticker on the helmet warned that severe head and brain injuries could occur despite wearing the helmet. Furthermore, the owner's information tag attached to the chinstrap of the helmet warned that the helmet provided no protection from neck, spinal, or certain types of brain injuries including those that may be caused by rotational forces. The court held that the warning sticker and the owner's information tag were not misleading and that the warnings were adequate in the circumstances.
Impact on Future Cases
While the More decision, which was unanimously upheld by the British Columbia Court of Appeal,11 certainly does not open the floodgates for sports-related manufacturer's negligence litigation, it does make clear that manufacturers can and will be liable where there is sufficient evidence to substantiate a claim of negligent design or manufacture. Given that the decision is extremely recent, there has not been much opportunity to see how Canadian courts will treat it in subsequent cases.
However, a look to the United States confirms that the door is not closed to sports-related product liability cases. A case filed as recently as December 2011 in Florida alleges that the manufacturer of a football helmet is liable for injuries sustained by a 14-year-old student in a junior football game. The student, Dylan Cannon, was injured when a player for the opposing team hit him at full speed. Cannon’s brain apparently shifted and hit the side of his skull, causing bleeding and requiring doctors to remove a portion of his skull to relieve pressure and drain the blood.
Cannon's mother, Katina Giardina, filed the suit on behalf of her son, alleging that the interior lining of her son's helmet would not inflate as designed and did not provide enough support to Cannon's head to prevent injury. These claims are clearly negligent design and negligent manufacturing claims.
It will be some time before the Cannon case gets to trial. However, it is clear that the risk of sports-related injuries is high in full contact sports, even with the use of safety equipment. Given the costs associated with caring for those with catastrophic injuries, such as traumatic brain injuries, it is to be expected that injured persons will continue to seek compensation from any source possible, including the manufacturers of safety equipment used in sports.
1 R.S. 1985, c. H-3.
2 Ibid at 193.
3 2000 BCCA 605 at 42-47.
4 Supra note 2 at 196.
5 Ibid at 198.
6 Ibid at 202.
7 Dallaire v. Paul-Emile Martel Inc., [1989] 2 S.C.R. 419 (S.C.C.), cited in More at 202.
8 Supra note 2 at 230.
9 Ibid at 225.
10 Ibid at 229.
11 2011 BCCA 419..
