A & Others v The National Blood Authority & Others,  All ER (D) 298 (MAR)
The recent decision of Mr Justice Burton in the Hepatitis C litigation is the first decision of a English judge to comprehensively review the provisions of the UK legislation giving effect to the EU Product Liability Directive, the Consumer Protection Act 1987 ("CPA"). Burton J held that 114 people infected with Hepatitis C following blood transfusions were entitled to compensation from the National Blood Authority estimated to be in excess of 6 million pounds.
In a lengthy judgment, Burton J held that in determining whether or not the product was defective, the crucial question was the level of safety that persons generally are entitled to expect. Significantly, he ruled that the question of whether a harmful characteristic of the product was avoidable was irrelevant and that it was, therefore, wrong to consider what tests a producer could or should have used to minimise or reduce the risk.
The judge also ruled that the National Blood Authority could not rely on the development risks defence (Article 7(e) of the Directive). Once the possibility of contamination was or ought to have been known to the producer, the producer supplied the product at its own risk. This was the case regardless of whether it would have been possible for the producer to identify in which (if any) of a series of blood products the contamination would actually occur.
It is understood that the defendants have not appealed the High Court's decision.
114 claimants sought to recover damages arising out of their infection with Hepatitis C through blood transfusions from 1 March 1988. The transfusions were given during surgery or immediately after childbirth and, in one case, in the course of treatment for a blood disorder.
The claims were brought under the CPA against the National Blood Authority, which was responsible for overseeing 14 regional blood transfusion centres, and against the Velindre NHS Trust, which had a similar responsibility for the blood transfusion service in Wales.
The Claimants' Case
Section 2 of the CPA imposes strict liability on the producer of a defective product that causes damage. The claimants' case was that all those who received blood infected with Hepatitis C after the CPA came into effect on 1 March 1988 were entitled to recover damages, irrespective of fault on the part of blood producers.
It was agreed that by the 1970s blood producers and the medical profession knew that there was a risk of infection by Hepatitis C in transfused blood and that some percentage of that blood (between 1% and 3% in the UK) was infected with Hepatitis C. However, no screening test to discover the presence of the virus in a donor's blood was known of or available until 1989, and specific screening for Hepatitis C (which has all but eliminated the problem of infection through transfusion) was not introduced in the UK until 1991.
The Directive v. The CPA
Although the claimants relied directly on the terms of the CPA as the basis of their action, both parties referred exclusively throughout the trial to the terms of the Directive, which was implemented in the UK by means of the CPA. Their...