Product Liability

A and Others v National Blood Authority and Another (QBD TLR 4 April)

Article 6 of the Product Liability Directive 1985 provides ‘A product is defective when it does not provide the safety which a person is entitled to expect, taking all circumstances into account …’. Article 7 provides: ‘The producer shall not be liable as a result of this Directive if he proves … (e) that the state of scientific and technical knowledge at the time when he put the product into circulation was not such as to enable the existence of the defect to be discovered’. All 114 claimants had been infected with the hepatitis C virus as a result of being given infected blood in transfusions for which the defendants were responsible. Section 2 of the Consumer Protection Act 1987 imposes strict liability on the producer of a defective product which caused damage. A defence under Article 7(e) must be based on the most advanced scientific and technical knowledge available to anyone at the time when the product was put into circulation, as long as it was accessible. It was common ground that the existence of the hepatitis C virus in blood generally was known at all relevant times. The defence could not therefore establish that there was no such knowledge which had identified the problem. A producer who knows, or should have known, of the existence of a defect continues to produce at his own risk. It would be inconsistent with the purpose of the 1985 Directive if a producer, in the case of a known risk, continued to supply products simply because he was unable to identify in which, if any, of his products that defect would occur.