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A v National Blood Authority

[2001] 3 All ER 289, [2001] Lloyd's Rep Med 187, 60 BMLR 1, [2001] All ER (D) 298 (Mar)

Court: QBD

Judgment Date: 26/03/2001

Cases considered by this case
Annotations: All CasesCourt: ALL COURTS

EUROPEAN COMMUNITY - CONSUMER PROTECTION - PRODUCT LIABILITY - CLAIMANTS BEING INFECTED WITH HEPATITIS C THROUGH BLOOD AND BLOOD PRODUCTS - CLAIMANTS BRINGING ACTION CONTENDING BLOOD A DEFECTIVE PRODUCT - DAMAGES - WHETHER BLOOD A DEFECTIVE PRODUCT - CONSUMER PROTECTION ACT 1987 - COUNCIL DIRECTIVE (EEC) 85/374, ARTS 6, 7(E).

Held:
1) When assessing a claim under art 6 of the Directive, the first step was to identify the harmful characteristic which caused the injury. In order to establish a defect under art 6, the next step would be to conclude whether the product was standard or non-standard. That would be done most easily by comparing the product with other products of the same type or series, produced by that producer. Where a product differed from the series, and the respect in which it differed included harmful characteristics, then it was, for the purposes of art 6, non-standard. The primary issue in relation to a non-standard product, was whether the public at large accepted its non-standard nature. Questions of legitimate expectation were to exclude consideration of the impracticality, cost and difficulty of taking measures, the benefit to society or utility of the product and the impossibility of taking precautionary measures. In respect of standard products, a product was likely to be unsafe as a result of an alleged error in design, or a flawed system. The harmful characteristic had to be identified, but the sole question would be safety for the foreseeable use. Again, there was no room for consideration of whether the producer could have acted differently or whether he could, or could not have acted in the same way others had. The resolution of the problem of the defective standard product was likely to be more complex than in the non-standard product. Issues of negligence, fault and the conduct of the producer were to be left to the limited ambit of art 7(e).
(2) The legitimate expectation of the public at large was not that legitimately expectable tests had been carried out, or precautions adopted. Instead, their legitimate expectation was to the safety of a product or not. It was not arguable that the consumer had an actual expectation that the blood being supplied to him was not 100% clean, nor did he have knowledge that it was, or was likely to be, infected with Hepatitis C. The blood could not therefore be considered a product that carried an inherent risk by its very nature, which consumers had chosen to expose themselves to.
(3) On its true construction, the words 'all considerations' within art 6 of the directive meant all relevant circumstances. It was plain that the directive was intended to eliminate proof of fault or negligence in order to make it easier for claimants to prove their case, such that not only would a consumer not have to prove that the producer did not take reasonable steps, or all reasonable steps, to comply with his duty of care, but also that the producer did not take all legitimately expectable steps either. Moreover, avoidability was not one of the circumstances to be taken into account within art 6. It was not a relevant circumstance since it was outwith the purpose of the directive and had it been intended, would have been included as a derogation from it.
(4) The infected bags of blood were non-standard products. It was immaterial as to whether they would have been categorised as manufacturing or design defects, as they were in any event, different from the norm which the producer intended for use by the public. Even in the case of standard products, such as drugs, side effects were only capable of being 'socially acceptable' where they were made known to the consumer.
(5) Article 7(e) provided that if the defect were known, or should have been known, in the light of non-Manchurianly accessible information (see para 49 of the judgment) then the producer continued to produce and supply at its own risk. It would be inconsistent with the purpose of directive if a producer, in the case of a known risk, continued to supply products simply because he was unable to identify in which of his products that defect would occur, or where he was obliged to supply, continued to supply without accepting the responsibility for any injuries resulting. The purpose of art 7(e) was plainly not to discourage innovation and exclude development risks, hence it protected a producer in respect of the unknown. The effect was not that non-standard products were excluded from coming within art 7(e), since they could qualify where the problem was not known. However, once the problem was known, by virtue of accessible information, then a non-standard product would no longer qualify for protection under art 7(e). In the instant case, the claimants could recover since the products were defective within art 6, and art 7(e) provided no defence.
(6) When assessing damages in respect of the infection simpliciter, it was obviously necessary to identify the condition, conclude whether there had been a clearance of the virus, and if so at what stage, and to decide, accordingly, whether the assessment was to be on the basis of provisional damages. It was then necessary to assess the prognosis, treatability and treatment symptoms identified and continuing. The infection simpliciter excluded any specific liver disease associated symptoms, or identifiable psychiatric disorder, but would include the existence of 'fatigue' (see para 213 of the judgment). Where any claimant could establish the suffering, past or future, of some slight or prejudice arising out of their condition, then that could also form part of their damages in respect of the infection simpliciter. That 'social handicap' could be distinguished from any 'employment handicap' or 'insurance handicap', which were also recoverable heads of damage. The triggers in respect of provisional damages were established.