A B.C. man has been awarded nearly $800,000 in damages as compensation for injuries he sustained from a defective bear banger, according to a recent court decision.
Madam Justice Sandra Wilkinson’s ruling noted that the company that distributed the bear bangers knew as early as 2017 that the devices had a defect that caused “premature detonation,” resulting in as many as 20 injuries – including burns and, in one case, the loss of an eye.
The plaintiff, Justin Muss, was working in a remote northern area as a gas and field operator in 2019 when he encountered a black bear that he tried to scare off by using the device – a Star Blazer bear banger, designed and distributed by Earth Management.
“The plaintiff tried yelling and honking his truck’s horn to deter the bear but the bear continued to move closer. Based on his experience and training, the plaintiff recognized that the bear would not go away without further intervention and decided to use a bear banger to try and further deter the bear so he could grab his tools and clean up his task,” the decision says.
“As soon as the plaintiff released the trigger, he heard a really loud bang and felt pain in his right side. He could not hear and everything looked blurry around him. He was confused and did not know what had happened,” it continues.
The injuries
A disoriented Muss noticed his hand was bleeding and bandaged it, before also realizing there was a piece of shrapnel lodged in his leg, prompting him to call a supervisor who would arrange transportation to hospital.
The painful injuries to his hand and leg, which would leave permanent scars, healed within a month. Temporary blurriness in his vision also resolved in the short-term.
But the court heard that some of the effects of the accident would be life-long. Muss experienced “instant hearing loss” when the defective bear banger went off as well as the immediate onset of tinnitus – a persistent buzzing or ringing – in his ears.
Although his hearing improved in the six months after the accident, progress plateaued, and Muss was left with permanent hearing loss as well as long-term tinnitus.
“The plaintiff experiences a constant low ringing in his ears that gets worse with any loud noise, prolonged exposure to noise or exhaustion. His injuries continue to cause him pain and discomfort, particularly if there are loud noises,” the decision says.
“The plaintiff also suffers from diminished hearing capacity and increased sensitivity to environmental sounds. Any background noise will make it difficult for him to hear because he feels that he hears all of the noise at once. He often misses portions of conversations and struggles to speak on the phone.”
The company’s negligence
The court heard that Earth Management stopped importing and selling the Star Blazer bear bangers in 2017 because there were “too many incidents of people getting hurt.” The company’s president, Peter Mueller, told the court that he made a list of over 80 companies he “believed” bought the bear bangers and signed a letter to be sent to the company’s customers in 2018.
“There is no record of who received the letter, if anyone,” the decision says.
Muss purchased one of the defective bear bangers from a sporting goods store in 2019. The judge’s decision said there is no evidence that retailer was even informed about the defect by mail, email, or telephone.
The steps taken to try to prevent future sale of defective bear bangers were described by the court as “an entirely deficient recall” of an unsafe product the company knew posed a serious safety risk.
“Earth Management’s negligence led to the plaintiff’s purchase of a defective bear banger years after Earth Management was aware of the defect. This failure to warn caused the plaintiff’s injuries,” the decision said.
“Earth Management is liable to the plaintiff because but for the negligence of Earth Management in failing to adequately recall the defective product, the accident would not have happened.”
Damages awarded
Muss was awarded a total of $795,176.86 in damages, $622,000 of which were for his loss of future earning capacity.
The judge warded $95,000 in non-pecuniary damages, meant to compensate Muss for his pain, suffering and the ongoing impact of his injuries.=
“I find that the plaintiff’s life has been significantly negatively altered by the daily pain he experiences as a result of his hearing problems. Every facet of his life has been affected,” Wilkinson wrote.
“At this time, it is unlikely that the plaintiff’s pain will improve or that his life will return to how it was before the accident.”
The court also awarded $10,000 punitive damages, meant to sanction the company for its failure to warn customers about the defective product.