The Hepatitis C case: Liability for unavoidable defects and learned intermediaries

Decision of the high court of justice, queen's bench division

Mr Justice Burton) 26 March 2001

This is the first major decision on strict liability in the UK and the first full judgment on liability in a multi-claimant product liability case. The judge held that blood infected with Hepatitis C was a defective product. He rejected the argument that it was, as a matter of law, a relevant circumstance that the risk was unavoidable. He then held that the "development risks" defence did not apply, since the risk that the defect might be present was known, and it was irrelevant that the existence of the defect could not be detected in individual products.

The judgment is some 170 pages long and the first half includes an extensive review of references on the above two points in European textbooks, academic writings and court decisions in various languages: it contains several important decisions of principle. The second half deals with quantification of six lead cases (in which the judge awarded appreciably less than had been claimed for some categories of damage). Claimants' costs were reportedly around GBP 3 million. The claim was brought by 114 claimants but there are reportedly 3,000-5,000 blood transfusion recipients with hepatitis C, and Department of Health officials believe that the financial implications of the case may run into hundreds of millions of pounds if applied in all cases where patients suffer unpreventable injury.

Certain aspects of the judgment are questionable, including the judge's conclusion that the "learned intermediary" doctrine has no relevance, and that the unavoidability of a defect is not a circumstance to be taken into account in deciding whether the product is defective.

For further information, please contact Chris Hodges by e-mail at christopher.hodges@cms-cmck.com or by telephone on +44 (0)20 7367 2738.