Ter Neuzen v Korn: 19 Oct 1995

CANLII (Supreme Court of Canada) The plaintiff underwent AI treatment by the defendant, during the course of which she contracted HIV-AIDS. She claimed in negligence and contract.
Held: A court must consider whether a common law warranty of fitness and merchantability should be implied into the contract which includes services as well as the provision of materials. However, such a warranty will not be implied in all circumstances. The court must examine the specific nature of the contract and the relationship between the parties in order to assess whether it was the intention of the parties that such a warranty be implied. Courts must be very cautious in their approach to implying contractual terms. A rationale for implying warranties in contracts of goods and services is that a supplier of goods generally has recourse against the manufacturer under the Sale of Goods Act as a result of the statutory conditions imposed. While it is true that the primary purpose of the implied warranty is to hold the supplier of goods liable notwithstanding the absence of negligence, different considerations apply in the context of the medical profession than in the ordinary commercial context. The doctor cannot trace the liability back to the initial manufacturer. Moreover, it must be recognized that biological products such as blood and semen, unlike manufactured products, carry certain inherent risks. It would be inappropriate to imply a warranty of fitness and merchantability in the circumstances of this case. Moreover, any warranty would simply be to take reasonable care.


La Forest, L’Heureux-Dube, Sopinka, Gonthier, Cory, McLachlin and Iacobucci JJ


[1995] 3 SCR 674





Commonwealth, Contract, Negligence, Damages

Updated: 02 May 2022; Ref: scu.402550