A Vancouver judge ordered a B.C. man be awarded $795,000 in damages after he was injured from a bear banger that had been discontinued nearly two years earlier. 

B.C. Supreme Court Justice Sandra Wilkinson awarded the damages to Fort St. John resident Justin Muss in her Nov. 15 decision in Vancouver. 

Muss was injured by the defective bear banger on May 18, 2019 when he used it while working as a gas and field operator in a remote area about 170 kilometres north of Fort St. John. Distribution of the specific model was stopped in October 2017 due to a defect that caused it to detonate prematurely, and after one person lost an eye from the defect. 

A bear banger is pyrotechnic explosive device that is used to deter bears away from the user. There are two separate pieces required to use a bear banger: the launcher that either uses a pen or a gun and the cartridge.

The product at issue was the Star Blazer bear banger's cartridge, which was designed and distributed by Earth Management and manufactured by Jiangxi under the direction of Earth Management. Jiangxi did not file a response to the claim.

Muss bought the Star Blazer bear banger on May 9, 2019 – almost two years after Earth Management had stopped distributing it due to the defect. 

Muss, then 32 years old, had been working alone at the oil and gas facility north of Fort St. John on May 18, 2019 when he noticed a "good-sized" black bear about 50 feet away from him and moving toward him. He tried to yell and honk his truck's horn, but it continued to move closer. 

Based on experience and training, Muss knew the bear wouldn't go away and decided to use the bear banger. He had been working as a gas field operator since 2008 and had received annual bear safety training that included how to use a bear banger. He had used them "hundreds" of times. 

Muss tried yelling at the bear once more, but it didn't work and he launched the bear banger. 

Afterward, he heard a really loud bang and felt pain on his right side. He was disoriented, unable to hear and everything looked blurry around him. He first noticed his right had was bleeding and the skin between his pointer finger and thumb had been peeled back. He checked his face and neck, but didn't find any more blood. 

Muss then found a piece of shrapnel sticking out of his left leg. He took off his coveralls and the shrapnel fell out, but despite there being no blood, Muss said his leg was burned and he couldn't feel anything. 

Not feeling safe to drive, Muss called his plant operator to request that someone pick him up. He was sent to the hospital by his foreman where he was examined and checked to make sure there was no shrapnel left in his body. 

Temporary and permanent injuries and work post-incident

Muss had temporary injuries to his hand and legs, with some scarring remaining. His vision was blurry after the banger went off and an optometrist said the explosion strained the muscles in his eyes, but his vision returned to normal about a week after the incident. 

For a few weeks after the incident, his hearing was muffled. He could barely hear out of his right ear and he had tinnitus in both ears. There was "minor gradual improvement" over six months, but it did not improve further. 

The only treatment that could potentially help is only offered in the U.S. and at a significant cost.

Since the incident, work has become "significantly more difficult" due to his injuries. He also didn't take time off because he was working as a contractor at the time of the incident and didn't have any coverage to allow him to take time off. 

Muss said he expects his injuries would make getting a higher paid supervisory role more difficult and if he has to leave the oil and gas industry to accommodate his hearing, he would have to take a pay cut to stay living in Fort St. John. 

He said the impacts to his hearing have also affected his relationships with his wife and two daughters. His wife has since had to take on most of the household duties, driving on highways and childcare. 

The design and production of the Star Blazer bear bangers

The court decision says that between 2010 and 2012, Earth Management hired Jiangxi to manufacture the bear bangers based on designs provided by Earth Management. 

In Canada, the only testing or quality control was to randomly select cartridges to fire off. Those tests would be done periodically each year, "generally after the winter or after there was an incident with a batch."

The decision says there are no records of any testing by Earth Management at any time. 

Earth Management president Peter Mueller became aware of 12 to 20 incidents with the cartridges between April 2016 and October 2017. All were premature detonations, with one person losing an eye. 

Jiangxi said it could not identify what was causing the misfiring. 

Earth Management stopped importing the cartridges because of the incidents.Mueller created a customer list of accounts he believed had bought the cartridges and signed a letter dated November 2018, but he didn't send it himself and wasn't sure if it was sent to all the customers on the list. 

After he wrote the letter, Mueller didn't follow up with any customers by email. Earth Management also didn't follow up with customers to make sure the letter was received. 

In her decision, Wilkinson said there is no evidence that Muss misused the product. She said the malfunction was either caused by a defect or a result of negligent design or storage. 

Wilkinson said that Earth Management's recall program was "not dependable" and the "minimal steps taken were totally disproportionate to the very serious risk of injury."