Strict Liability for Medical Products: Prospects for Success

Abstract

The premise of product liability reform has been that strict, rather than fault based liability, is the most equitable means of compensating personal injuries. The movement for reform was instigated, in part, by the tragedy of Thalidomide. The difficulties faced by claimants seeking compensation in negligence were substantial, especially in respect of claims involving medical products. The introduction of a regime of strict liability by Directive 85/374/EEC, and its implementation in the United Kingdom by Part I of the Consumer Protection Act 1987, were intended to ameliorate some of these difficulties. The extent to which the regime accomplishes this has been a matter of speculation. Recent case law, however, provides much needed judicial interpretation of key aspects of the regime. The case of A and others v National Blood Authority and another makes a significant contribution to case law, and is, notably, the first case to succeed against the producer of a medical product. There is now reason to believe that the strict liability regime affords claimants, especially in cases involving medical products, advantages compared to negligence. However, some aspects remain unclear, and some difficulties, particularly affecting medical products, persist. It may be that further reform is necessary, to achieve greater certainty and to enhance the prospects for successful claims in this area.