A and Others v National Blood Authority and Another

A & Ors v National Blood Authority & Ors
CourtHigh Court of Justice
Full case name A and Others v National Blood Authority and Another
Decided26 March 2001
Citation[2001] EWHC QB 446
Court membership
Judge sittingMr Justice Burton
Keywords
  • Safety level
  • Blood as a defective product[1]

  • Screening for HCV
  • Surrogate testing
  • Product liability
  • Non-standard product
  • Legitimate expectation
  • Comparative law[2]

A and Others v National Blood Authority and Another, also known as the Hepatitis C Litigation,[3] was a landmark product liability case of 2001 primarily concerning blood transfusions[1] but also blood products or transplanted organs,[4] all of which were infected with hepatitis C, where liability was established under the Consumer Protection Act 1987 and the Product Liability Directive (85/374/EEC) even in the absence of the ability to test to ascertain which blood transfusions were defective.[5] The claimants were 114 individuals, six of whom were considered lead plaintiffs and given close consideration by the judge, Mr Justice Burton. Several of the claimants were minors who had become infected with Hepatitis C in the course of their treatment for leukaemia.[6] The defendants were the National Blood Authority (NBA) and in respect of Wales, the Velindre NHS Trust, Cardiff.[7] The court found that the UK government should have implemented measures to screen donated blood for HCV by March 1990, rather than September 1991,[8] and that surrogate testing should have been introduced within the United Kingdom no later than 1 March 1988.[9]

Blood as a product

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This case demonstrated that blood for transfusion and organs for transplantation could be considered natural substances under Section 45 (1) of the Consumer Protection Act 1987, and as such, blood infected with hepatitis C would count as a defective product.[10] Burton J accepted that the hepatitis C–infected blood bags were non–standard products that would be at variance with the producer's intended use. It was not accepted, however, that all blood products were likely to be considered similarly defective. The Defendants did not agree that blood was a non–standard product and claimed that all blood, even though it was processed to a certain degree, carried an inherent risk—by virtue of being derived from a ″natural raw material″.

Burton J was satisfied that the problem of infected blood was not known to the consumer, nor did the consumer expect the bag of blood they were being given to be defective. After taking into account all circumstances as per the Product Liability Directive 85/374/EEC, the blood which had been infected with hepatitis C on and after 1 March 1988 failed to provide the expected level of safety and as such, was deemed to be a defective product within the meaning of Article 6.

Circumstances under Article 6

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The court looked to the EU Product Liability Directive rather than the Consumer Protection Act 1987. The wording of Article 6 of the Directive states that when all circumstances are taken into account, and the product does not provide the safety that someone is entitled to expect, that product is rendered defective.[11]

Conclusions on Article 6

I do not consider it to be arguable that the consumer had an actual expectation that blood being supplied to him was not 100% clean, nor do I conclude that he had knowledge that it was, or was likely to be, infected with Hepatitis C.

— Mr Justice Burton[5]

The Defendant's argued that the wording under Article 6 as to how ″all circumstances″ should be taken into account in establishing the level of safety, meant that the court had to consider what steps could reasonably have been expected of the producer, the National Blood Authority, in trying to avoid viral transmission.[12] However, Burton J held that avoidability was not one of the circumstances that needed to be taken into account under Article 6.

The circumstances under Article 6 which should be taken into account include:

  1. the way the product is presented, for example, the price or any warnings displayed;
  2. the reasonable expected or foreseeable use of the product;[note 1]
  3. the time when the product was put into circulation, for example, whether the product was stale or out of date.

Under Article 6(2), if a newer version of a product was to come into circulation, it would not render the older version defective simply because there was a better version available.

NANBH and precautions

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In the HIV Haemophilia Litigation, one of two legal issues cited in paragraph 20 of the Advice on Settlement document posed the question as to whether the defendants were negligent in exposing the plaintiffs to the risk of infection historically from hepatitis and whether this would extend to the Department of Health being held liable should the plaintiffs be found to be infected with an unforeseen virus, which in this case, was HIV.[15]

The question came about from material which had been produced by the plaintiff's legal advisors during the proceedings and more specifically from the defendant's discovery which Mr Justice Ognall had permitted the use of in the pending Hepatitis Litigation (A and Others v National Blood Authority and Another), where non-A non-B hepatitis (NANBH) was to become the focus over which precautions should have been taken historically, rather than the "proxy" as it had been in the HIV Haemophilia Litigation.[16]

Significance

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The late Lord Morris of Manchester, then president of the UK Haemophilia Society,[17] said that the case represented a ″landmark judgement″ that would be of considerable interest to several thousand others who had been infected with hepatitis C as a result of NHS–supplied blood products.[4] The ruling, which found in favour of the claimants, was significant in that it was the first of its kind where there was a finding of liability in medical circumstances under consumer law, without the need for a finding of fault, in particular, without needing to prove fault on the part of the National Blood Authority who had supplied the defective product. It was also the first group action under the Consumer Protection Act 1987.[18] The case was able to proceed by drawing legal comparisons between differing legal systems, particularly involving European law.[2][19]

Government response

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In a House of Lords debate on 23 March 2001, Lord Hunt of Kings Heath, in his role as Parliamentary Under-Secretary of State for Health at the Department of Health, said that careful consideration would have to be given to the implications of the judgment which he described as the first of its kind in relation to the NHS under the Consumer Protection Act.[20] In the same debate, Lord Clement-Jones made the claim that officials of the Parliamentary Under–Secretary of State at the Department of Health had been discretely warning journalists as to the possible implications of the judgment and that it had been reported in The Independent that the NHS could see claims in the region of hundreds of millions if similarly injured consumers were to follow the precedent of this case.[21]

See also

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Notes

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  1. ^ An unexpected use of a non–dangerous product would not necessarily render the product defective.[13] For products where the expected use is considered dangerous, a different 'dangerousness' can still be claimed.[14]

References

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  1. ^ a b Kinsella, Jack; Subhasree, D. (20 January 2020). "Judgement for the case A v National Blood Authority". oxbridgenotes.co.uk. Oxbridge Notes. Retrieved 28 May 2020.
  2. ^ a b Brooke, Michael; Forrester, Ian (2015). "The Use of Comparative Law in A & Others v National Blood Authority". Courts and Comparative Law. OUP. pp. 657–679. doi:10.1093/acprof:oso/9780198735335.003.0036. ISBN 978-0-19-873533-5. Retrieved 31 January 2022.
  3. ^ Goldberg, Richard (1 January 2002). "Paying for Bad Blood: Strict Product Liability after the Hepatitis C Litigation". Medical Law Review. 10 (2): 165–200. doi:10.1093/medlaw/10.2.165 – via academic.oup.com.
  4. ^ a b "Hepatitis patients win compensation". BBC News. Wales. 26 March 2001. Retrieved 28 May 2020. They were infected with Hepatitis C, which affects the liver, after receiving blood transfusions, blood products or transplanted organs.
  5. ^ a b A & Ors v National Blood Authority & Ors [2001] EWHC 446 (QB), [2001] EWHC QB 446, (2001) 65 BMLR 1, 65 BMLR 1, [2001] Lloyd's Rep Med 187, [2001] 3 All ER 289 (2001), High Court (England and Wales)
  6. ^ Gordon, Cathy; Colley, Jan (26 March 2001). "Hepatitis sufferers win fight for damages". The Independent. Archived from the original on 14 June 2020. Retrieved 14 June 2020.
  7. ^ "NHS pays damages to hepatitis victims". The Scientist. 26 March 2001. Retrieved 29 May 2020. The judge will consider whether to grant the defendants, the National Blood Authority in England and the Velindre NHS Trust in Wales, leave to appeal on 10 April.
  8. ^ Dyer, Clare (31 March 2001). "Nhs Told To Pay £10M To Patients Infected With Hepatitis C". British Medical Journal. 322 (7289): 751. JSTOR 25466591 – via JSTOR.
  9. ^ A & Ors v National Blood Authority & Ors, 446, 10 (EWCH 2001) ("I am however satisfied that it ought to have been at some stage after the introduction of the surrogate tests in the United States and the subsequent consideration given to them in the United Kingdom, and before, or at any rate by, 1 March 1988.").
  10. ^ McBride, Nicholas J.; Bagshaw, Roderick (2008). Tort Law (Third ed.). Essex, England: Pearson Education, Limited. p. 776. ISBN 9781405859493. Indeed, it was conceded in the important case of A v National Blood Authority that contaminated blood did count as a ′product′ under the Act.
  11. ^ Directive 85/374/EEC of 25 July 1985 of the European Parliament and of the Council on the approximation of the laws, regulations and administrative provisions of the Member States concerning liability for defective products
  12. ^ Paroha, Karishma Jasani; Sayers, Shane (18 February 2010). "Case law lessons on defective products and the development risks defence". International Law Office. Archived from the original on 6 June 2020. Retrieved 6 June 2020.
  13. ^ A & Ors v National Blood Authority & Ors, 446, 4c (EWCH 2001) ("If it is not expected to be dangerous in respect of its expected use, but the use to which it is put is unexpected, then it may not be defective.").
  14. ^ Ramsay, Iain (2012). Consumer Law and Policy: Text and Materials on Regulating Consumer Markets. London: Bloomsbury Publishing. p. 613. ISBN 9781782250241. ...but complaint could still be made of a different dangerousness, such as if it exploded on the trigger being pulled.
  15. ^ Brennan QC, Daniel; Jackson QC, Rupert; Brooke, Michael; Evans, Hugh (10 December 1990). HIV Haemophilia Litigation - Advice on Settlement. London: 2 Crown Office Row, Temple and 38 Essex Street, Temple. p. 13. 20. The Legal issues. There are two legal issues which are difficult and disputed. First, if the defendants were negligent in exposing the plaintiffs to a risk of infection from hepatitis, are they liable if the plaintiffs are infected by an unforeseen virus HIV? ...
  16. ^ Fairgrieve, Duncan; Brooke, Michael (2005). In Product Liability in Comparative Perspective. Cambridge: Cambridge University Press. p. 16. ISBN 9781139448031. Near the end of the HHL, Mr Justice Ognall allowed the plaintiffs' lawyers to act in the forthcoming Hepatitis Litigation, using the knowledge acquired when acting in the HHL, particularly resulting from the disclosure provided by the various defendants. In the Hepatitis Litigation NANBH, no longer the proxy, was the target itself.
  17. ^ "Lord Morris (President from 1999–2012)". The Haemophilia Society: Our People—Who We Are. Retrieved 31 May 2020. The late Lord Morris of Manchester was president of the Haemophilia Society until he passed away, aged 84, in August 2012.
  18. ^ Dyer, Clare (27 March 2001). "Infected blood victims′ victory". The Guardian. London. Retrieved 2 June 2020. The case... ...was the first group action to reach court under a little–used law, the Consumer Protection Act 1987.
  19. ^ "Obituary: HH Michael Brooke QC (1942-2014)". Medico-Legal Journal. 82 (4): 130–131. 2014. doi:10.1177/0025817214560293. PMID 25471212. S2CID 206425736. Retrieved 31 January 2022. By then a QC (he took silk in 1994) the case was advanced based on European and comparative law...
  20. ^ Lord Hunt of Kings Heath, Parliamentary Under-Secretary of State for Health, Department of Health (23 March 2001). "National Blood Authority". Parliamentary Debates (Hansard). Vol. 624. Parliament of the United Kingdom: House of Lords. col. 411–412.
  21. ^ Lord Hunt of Kings Heath, Parliamentary Under-Secretary of State for Health, Department of Health (23 March 2001). "National Blood Authority". Parliamentary Debates (Hansard). Vol. 624. Parliament of the United Kingdom: House of Lords. col. 410–411. However, his officials seem to be warning journalists about the implications. The Independent stated: "Department of Health officials privately warned that the implications of the 173-page judgment were that the NHS could face claims for hundreds of millions of pounds in compensation if the same reasoning was applied in other cases where patients suffered unpreventable injury".
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Witness Statement of Harold Hastings Gunson in A and Others (March 2000)

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