Last week the British Columbia Supreme Court released its decision in More v. Bauer Nike Hockey Inc.
Helmet Met Standards
In 2004 the plaintiff was a 17 year old hockey player. He was wearing a helmet certified by the Canadian Standards Association (CSA). The helmet met all of the CSA standards.
During the game, More crashed into the boards, hitting his head. He suffered a subdural hematoma, a serious brain injury. As a result, More was severely and permanently disabled.
His parents sued a variety of defendants including the manufacturer of the helmet, Bauer, and the CSA. The lawsuit was eventually dismissed. However, there was one part of the judgment that I found very interesting.
Were Standards Negligent?
Bauer defended the case on the basis that they manufactured their helmet in accordance with CSA standards. The plaintiff launched a creative argument that the CSA standards were negligent. In other words, it didn’t matter that the helmet met CSA standards, because the standards themselves were not adequate!
No Duty of Care
The CSA argued in defence of the claim that even if the court found that the standards for certifying hockey helmets were unreasonably low, the CSA couldn’t be sued because they didn’t owe More a duty of care.
No Reliance?
In other words, even if their certification standards were negligent it wasn’t foreseeable that children wearing the helmets would rely on the CSA certification.
Standards Must be Reasonable
Justice MacAulay found that organizations that create certification standards can be sued for negligence if the standards themselves are not adequate.
MacAulay, J. stated:
“I am satisfied that it was reasonably foreseeable that a hockey player and wearer of a mandatory certified hockey helmet might suffer harm if the CSA set the certification standard unreasonably low in the circumstances. …
“By legislative definition, any hockey helmet that is not certified is a hazardous product and cannot be sold in Canada. No matter how well designed the helmet may, in fact, be, no manufacturer can offer it for sale unless it is certified. The consumer hockey player has no choice and buys, or otherwise obtains, the helmet for the purpose of self-protection in a game that has inherent dangers. Nonetheless, there is some reliance by the consumer on the fact of certification and an expectation that the risk of at least some injuries is reasonably reduced. Otherwise, there would be no need for any helmet at all.”
What does it mean?
In product liability cases, it is common for the manufacturer of an allegedly defective product to defend a plaintiff’s claim on the basis that the product met all of the certification standards required by whatever organization certifies the product.
The More case clearly establishes that certifying organizations themselves may be sued if their standards are too low.
Are professional organizations at risk?
But I think the case goes beyond that. In every province professionals are certified by their respective “professional association”. Lawyers have to meet certain standards set by provincial Bar societies, doctors are licensed by provincial medical societies, engineers are certified by their provincial professional organization, and so on.
If a plaintiff suffers a loss as a result of professional negligence it is conceivable that an argument could be made against the organization that certified the professional and the organization may be held liable if their certifying standards are found to be unreasonably low.
Admittedly it may be a stretch to assume one will be able to find an expert willing to testify that the standards of their own professional organization are unreasonably low.
On the other hand, if there is a significant difference in the standards required between various provincial organizations, one can see how an argument might be made by an expert from a neighbouring jurisdiction that differing professional certification standards may be unreasonably low.