A B.C. Supreme Court judge has awarded a man $795,000 for damages after he was injured when using a bear-frightening device later found to be defective.
Justin Muss filed a lawsuit against 735084 Alberta Inc. doing business as Earth Management and Jiangxi Xinyu Guoke Science and Technology Co., Ltd.
In her Nov. 15 decision, Justice Sandra Wilkinson said Muss suffered injuries when he tried to use a bear banger explosive to deter a bear while he was working as a gas and field operator in a remote area approximately 170 km north of Fort St. John on May 18, 2019.
Muss saw a “good-sized” black bear around 50 feet away from him, the ruling said. He tried yelling and honking his truck’s horn to deter the bear but the bear continued to move closer.
The judge said that, based on his experience and training, Muss recognized that the bear would not go away without further intervention. He decided to use a banger to further deter the bear so he could grab his tools and clean up his task.
He grabbed a TruFlare pen launcher and a Star Blazer bear banger cartridge he had and prepared to use it.
“As soon as the plaintiff released the trigger, he heard a really loud bang and felt pain in his right side,” the judge wrote. “He could not hear and everything looked blurry around him. He was confused and did not know what had happened.”
Soon, he noticed his right hand was bleeding and saw that the skin between his pointer finger and thumb had been peeled back.
“After that, he found a piece of shrapnel sticking out of his left leg. He took off his coveralls to get a closer look and the piece of shrapnel fell out,” Wilkinson said.
“His leg was not bleeding but he saw that the area around where the shrapnel entered his leg was burned and he could not feel anything there.”
Muss began to panic, worried that he had suffered other injuries that he could not feel yet.
The judge said Muss has worked as a gas field operator since 2008, work involving being alone in remote locations and working in environments with loud machinery.
At the time of the accident, Muss earned $72,000 per year.
The court heard he has received bear safety training through his job since 2008, including bear banger use training, implements he has used hundreds of times.
The judge found Muss’ right hand was cut between his pointer finger and thumb and had punctures, burn wounds, and bruising.
He has ongoing hearing problems that he said have limited his social life and contributed to strains in his marriage and relationship with his daughters.
“The plaintiff’s work has become significantly more difficult due to his injuries,” Wilkinson said.
“His injuries are permanent and he will spend the remainder of his life living with them.”
Liability
Wilkinson said Earth Management was liable to Muss for failing to properly recall the defective product.
“In October 2017, Earth Management was aware of 12-20 incidents in which a Star Blazer bear banger had exploded prematurely and injured the user. These injuries included burns and at least one user lost an eye,” the judge said. “At this point, Earth Management was aware that there was a high level of danger entailed by ordinary use of the product.”
She said steps taken to recall the product were minimal.
“I find that the accident would not have happened but for the negligence of Earth Management,” Wilkinson ruled. “Earth Management is liable to the plaintiff for sale of the defective and dangerous product.”
Damages
Broken down, Wilkinson awarded:
• non-pecuniary damages of $95,000;
• loss of future earning capacity damages of $622,000;
• costs of future care damages of $17,086;
• past and future housekeeping capacity damages of $41,879;
• special damages of $9,211; and,
• punitive damages against Earth Management of $10,000.
