A AND OTHERS V SECRETARY OF STATE FOR THE HOME DEP

The claimants had been infected with Hepatitis C (the virus) through blood transfusions which had used blood or blood products obtained from infected donors. They brought actions for damages against the defendants, the authorities responsible for the production of blood and blood products. During the period when most of the claimants were infected, the risk of such infection through blood transfusions, though known to the medical profession, was impossible to avoid, either because the virus itself had not yet been discovered or because there was no way of testing for its presence in blood. Accordingly, the claims were brought not in negligence, but under the Consumer Protection Act 1987 which implemented Council Directive.

Under that directive, a producer was liable for damage caused by a defect in his product. By virtue of art 6(1)a, a product was defective when it did not provide the safety which a person was entitled to expect, taking all circumstances into account, including the presentation of the product, the use to which it could reasonably be expected that the product would be put and the time when the product was put into circulation. Article 7(e)b provided the producer with a defence if he could establish 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. On the trial of the six lead cases, the defendants accepted that a producer's liability under art 6 was irrespective of fault. They nevertheless contended that, in assessing whether the infected blood was defective, the unavoidability of the risk was a circumstance to be taken into account, and that the most that the public was entitled to expect was that all reasonably available precautions had been carried out, not that the blood would be 100% clean. In so contending, the defendants submitted that the infected blood was to be regarded as an inherently risky standard product (ie one which performed as the producer intended) rather than a non-standard product (ie a product which was deficient or inferior in terms of safety from the standard…