(F) Comparative observations

There are a number of similarities but also of striking differences between the evolution of the English and French laws governing medical liability and liability for medical products apart from liability under the Product Liability Directive.

(p.300) At the very broadest level, there is a very striking paradox. For while English law formally treats all cases of medical liability to the ‘ordinary’ law and does not appear to distinguish according to whether health care is provided in the public or the private sectors, the way in which it applies to these two sectors in the context of liability for products is different, imposing a strict liability on all suppliers for the quality and safety of the products supplied in the private sector, but not the public sector.²⁴⁶ By contrast, while French law for perhaps a century recognised very different bases of liability for public and private sector health care, over the last decade or so the jurisprudence of the Cour de cassation and the Conseil d’Etat moved closer and closer, and then in 2002 legislation placed the liability of medical practitioners and institutions on the same legal bases.²⁴⁷

Secondly, however, English law’s treatment of medical liability has been remarkably stable. Apart from the contractual liabilities in private sector suppliers of medical products (which have not figured prominently in the case law owing to the dominance of the NHS), liability requires proof of negligence either in individual medical practitioners in the provision of care or in medical institutions in their organisation and systems of care.²⁴⁸ English law has not developed any special strict liabilities in hospitals or doctors regarding the use or supply of products nor in respect of particular categories of medical risk (such as are found in French law in relation to nosocomial infections). On the other hand, after a degree of hesitation in the context of charitable hospitals, English law first applied its general law of vicarious liability and then extended it to construct a personal and ‘non-delegable’ duty at least in hospitals as to the provision of health care.²⁴⁹ In these cases, therefore, while proof of negligence is still required (in the action of the hospital’s employee, contractor or the latter’s own employees), from the point of view of the hospital itself, liability is very strict indeed.

By contrast, the law governing French medical liability has not been stable for some 40 or more years. While the general basis of liability in private law has remained constant, more and more examples of presumed fault or strict contractual liabilities were accepted, especially as regards the use or supply of products, even before the courts ‘implemented’ the Product Liability Directive.²⁵⁰ The general basis of liability in administrative law itself changed from a requirement of faute lourde to faute simple, to which were again added particular cases of liabilities without fault, these echoing but not exactly matching those recognised by the ordinary courts. On the other hand, neither jurisdiction has had much recourse to the notion of vicarious liability. As regards the Conseil d’Etat the reason is obvious, as it has no general recourse to this notion in attributing liability to the administration.²⁵¹ But while in principle the individual civil servant enjoys an immunity, the administration may be liable directly, particularly for their fault in the organisation of the public service (faute du service).²⁵² In the case of private sector health care, there are cases in which hospitals are held liable for the fault of their employees, but doctors are not generally employed by private hospitals but rather work under contracts with their patients.²⁵³ A patient in a private hospital may therefore need to sue either the doctor or the hospital or both (all in (p.301) contract).²⁵⁴ It should be in this light that we should see the imposition of liability in respect of ‘nosocomial infections’, for where a patient has contracted an infection during his or her stay in hospital, it may be impossible to show how it arose or who was at fault.²⁵⁵ To this extent, this direct strict liability could play something like the role which in English law is played by vicarious liability.

Fourthly, apart from implementation of the Product Liability Directive, neither English law nor French law imposed liability on the manufacturers of pharmaceutical or other medical products except on the basis of fault or negligence. In the case of English law, this fits perfectly well into the general framework; in French law, it was difficult to reconcile with its strict approach either to liability in sale beyond privity of contract nor to its approach in other contexts to the application of liability for the ‘deeds of a thing’.²⁵⁶ This was also true of the liability of pharmacists in respect of prescription medicines in both systems, with the exception in English law of those which are supplied under contracts of sale.²⁵⁷

Fifthly, the cost of liability of medical practitioners and hospitals remains very differently spread in the two systems. In the French context, both public and private providers of health care have to take out contracts of liability insurance, with the consequential problems which we have seen hurriedly dealt with in late 2002. By contrast, the NHS acts as its own insurer and other providers, such as NHS general practitioners or doctors working in private practice are mostly covered by their special ‘mutual societies’ or by insurance.²⁵⁸

Finally, the Creutzfeld-Jakob Disease Litigation illustrates very dramatically the differences in the nature of the civil processes in the two jurisdictions, the English trial judge reading vast quantities of documentary evidence and scientific literature and hearing days of controversial scientific evidence and argument. While Morland J himself pondered whether an inquisitorial approach would have been better, it can be seen that the combination of rules, practices and professional ethics led to a full investigation of the facts. In my view, if we are to find any equivalent of this sort of treatment in the French system, we need to look at the criminal process, rather than the civil.²⁵⁹ (p.302)

Notes:

(¹) Above, pp. 132–3.

(²) Above, p. 133.

(³) Above, pp. 134–6.

(⁴) As to common carriers, see below, pp. 281–2. As to innkeepers, see Lane v Cotton (1702) 1 Salk 17, 18.

(⁵) Race Relations Act 1976 s 20 (no discrimination on the grounds of race, nationality or ethnic group in respect of the provision of goods or services to the public or a section of the public).

(⁶) Craig, Administrative Law , Chap. 4.

(⁷) Ibid .

(⁸) This is now governed by the Financial Services and Markets Act 2000.

(⁹) Craig, Administrative Law, 138–41 .

(¹⁰) CPR Part 54.2; Craig, Administrative Law , Chap. 23.

(¹¹) Above, pp. 166–7.

(¹²) Craig, Administrative Law, 5–9, 15–16 .

(¹³) Nicholas in Harris and Tallon, Chap. 4, ‘The Pre-contractual Obligation to Disclose Information, English Report’, 178 and see below, pp. 336–7.

(¹⁴) Craig, Administrative Law, 12–20 .

(¹⁵) This is suggested by the Human Rights Act 1998, s. 6 which has its own definition of ‘public authority’ for these purposes.

(¹⁶) Craig, Administrative Law, 93–5 .

(¹⁷) Below, p. 289.

(¹⁸) Below, pp. 284–5.

(¹⁹) Below, pp. 295–9.

(²⁰) This final qualification results from the Contracts (Rights of Third Parties) Act 1999.

(²¹) Supply of Goods and Services Act 1982, s. 4.

(²²) Ibid. s. 9.

(²³) Unfair Contract Terms Act 1997, s. 2 and s. 3.

(²⁴) Above, pp. 232, 235–6.

(²⁵) See above, p. 157.

(²⁶) Above, p. 245.

(²⁷) [1943] 1 KB 526. Cf. Lee v Griffin (1861) 1 B & S 272 (distinguishing the two types of contract in the context of formal requirements). See also IBA v. EMI Electronics Ltd. (1980) 14 BLR 1 (designer and supplier of television aerial mast).

(²⁸) Lockett v A & M Charles Ltd. [1938] 4 All ER 170.

(²⁹) [1940] 1 All ER 174.

(³⁰) Ibid., 179–80; GH Myers & Co. v Brent Cross Service Co. [1934] 1 KB 46; Dodd v Wilson [1946] 2 All ER 691.

(³¹) Young & Martin Ltd. v McManus Childs Ltd. [1969] 1 AC 454.

(³²) Hyman v Nye (1880–81) LR 6 QBD 685, 689–90 though cf. 687–8 (hirer as ‘insurer against all defects which care and skill can guard against’). See also Reed v Dean [1949] 1 KB 188 (hire of Thames motor launch); Yeoman Credit Ltd. v Apps [1962] 2 QB 508 (hire-purchase).

(³³) J’ones v Page (1867) 15 LT (NS) 619, 620, per Pigott B.

(³⁴) Kimber v William Willett Ltd. [1947] KB 570.

(³⁵) E.g. the supply of medical services of diagnosis, see below, p. 288.

(³⁶) Readhead v Midland Rly. Co. (1867) LR II QB 412, (1869) LR IV QB 379, below, pp. 283–4.

(³⁷) Greaves & Co (Contractors) Ltd. v Baynham Meikle & Partners [1975] 1 WLR 1095 (though a stricter term implied on the facts); George Hawkins v Chrysler (UK) Ltd. (1986) 38 BLR 36 (designer and supervisor of refurbishment held only to reasonable care).

(³⁸) Kimber v William Willett Ltd. [1947] KB 570.

(³⁹) Driver v William Willett (Contractors) Ltd. [1969] 1 All ER 665 (consultant engineers and employer’s compliance with safety rules).

(⁴⁰) Implied Terms in Contracts for the Supply of Goods (1979) Law Com. No. 95.

(⁴¹) Above, pp. 235–6.

(⁴²) Supply of Goods and Services Act 1982, ss. 3 and 4 (as enacted).

(⁴³) Ibid., s. 1.

(⁴⁴) Ibid., ss. 8 and 9.

(⁴⁵) Ibid., s. 13.

(⁴⁶) Unfair Contract Terms Act 1977, ss. 6 and 7; Sale and Supply of Goods Act 1994, ss. 1, 7(1) and Sch. 2, para 6.

(⁴⁷) Sale and Supply of Goods to Consumers Regulations 2002, rr. 7 and 10 and see below, p. 588.

(⁴⁸) Above, p. 179.

(⁴⁹) Contracts (Rights for Third Parties) Act 1999, s. 1.

(⁵⁰) Above, pp. 99–104.

(⁵¹) Above, p. 100.

(⁵²) Above, pp. 101–2, 103, 111–12.

(⁵³) Ibid.

(⁵⁴) Above, p. 228.

(⁵⁵) Defective Premises Act 1972, s. 1(1).

(⁵⁶) Ibid., s. 1(1)(a) and (b).

(⁵⁷) Markesinis and Deakin’s Tort Law, 356–7 .

(⁵⁸) Defective Premises Act 1972, s. 1(5).

(⁵⁹) [1991] 1 AC 398.

(⁶⁰) Above, p. 184.

(⁶¹) See especially Smith v Eric S. Bush [1990] 1 AC 831 and above, p. 228.

(⁶²) Bottomley v Bannister [1932] 1 KB 458, 468; Edler v Auerbach [1950] 1 KB 359, 374.

(⁶³) Collins v Hopkins [1923] 2 KB 617.

(⁶⁴) Cavalier v Pope [1906] AC 428.

(⁶⁵) Rimmer v Liverpool City Council [1985] 1 QB 1.

(⁶⁶) Landlord and Tenant Act 1985, s. 8 and see also ss. 9–10.

(⁶⁷) Ibid., ss. 11–17.

(⁶⁸) Defective Premises Act 1972, s. 4(1).

(⁶⁹) Alderson v Beetham Organisation Ltd. [2003] EWCA Civ 408; [2003] 1 WLR 1686.

(⁷⁰) Ibid.

(⁷¹) Above, pp. 70 (sale), 104–8 (builders), 108–11 (hire).

(⁷²) Above, pp. 104–5.

(⁷³) Above, p. 104.

(⁷⁴) This was true of electricity and gas (Electricity Act 1947, Gas Act 1948) but not water which remained divided between public suppliers and privately owned statutory undertakers even after the Water Act 1945.

(⁷⁵) Gas Act 1986; Electricity Act 1989; Water Act 1989; Water Industry Act 1991.

(⁷⁶) Stevens v Aldershot & District Gas Water & Lighting Co. (1933) 102 LJKB 12; Willmore & Willmore v South Eastern Electricity Board [1957] 2 Lloyd’s Rep 375; Norweb plc v. Dixon [1995] 1 WLR 636 (all elec tricity); Clegg, Parkinson & Co. v Earby Gas Co. [1896] 1 QB 592 (gas); Read v. Croydon Corpn. [1938] 4 All ER 631 (water).

(⁷⁷) Morris & Bastert Ltd. v Loughborough Corpn. [1908] 1 KB 205.

(⁷⁸) Ibid.

(⁷⁹) Stevens v Aldershot & District Gas Water & Lighting Co. cit. On the other hand, sometimes the courts assumed or held that breach of safety regulations could give rise to liability especially where these related to the safety of places of work: Hartley v Mayoh & Co and the North-Western Electricity Board [1953] 2 All ER 525.

(⁸⁰) Read v Croydon Corpn., cit.; Barnes v Irwell Valley Water Board [1939] 1 KB 21 (CA) (water contami nated by lead pipes).

(⁸¹) Stevens v Aldershot & District Gas Water & Lighting Co, cit.; Clegg, Parkinson & Co. v Earby Gas Co, cit.

(⁸²) Above, pp. 224–5.

(⁸³) Above, p. 224.

(⁸⁴) Cf. Tate and Lyle v GLC [1983] 2 AC 509.

(⁸⁵) So, for example, the gas and electricity industry markets are regulated by the Office of Gas and Electricity Markets (‘OFGEM’) and the water industry by the Office of Water Services (‘OFWAT’).

(⁸⁶) In the case of gas, the distinction is between ‘gas transporters’ (who bear the duty to connect) and gas suppliers (who supply the product): Gas Act 1986, s. 10 as substituted by Gas Act 1995, s. 10(1), Sch. 3, para. 4 and then amended by Utilities Act 2000, s. 80 and Sch. 6(1) para. 2(1). In the case of electricity, the distinction is between the distributors of electricity (who bear the duty to connect) and electricity suppliers (who supply the product): Electricity Act 1989, ss. 16 and 17 as substituted by the Utilities Act 2000, s. 44.

(⁸⁷) Gas Act 1986, s. 7A; Electricity Act 1989, s. 7 as amended by Utilities Act 2000, ss. 32 and 81. See also the Gas Suppliers Licence: Standard Conditions, condition 32; Electricity Supply Licence: Standard conditions, condition 32; both approved by the Dti in September 2001 and available at 〈http://www.dti.gov.uk/〉.

(⁸⁸) The Gas Act 1986 and the Electricity Act 1989 (as amended) both provide that the supply of gas otherwise than under a contract is supplied under a ‘deemed contract’ on terms which are determined by a scheme for this purpose: Gas Act 1986, Sch. 2B para. 8 (as inserted by Gas Act 1995, s. 9(12), Sch. 2 and amended by Utilities Act 2000, Sch. 6, Part 1, paras. 1, 2, 23, Sch. 8; Electricity Act 1989, s. 24, Sch. 6, para. 3. The typical example of their application is where a new owner or tenant of premises takes over the supply of gas or electricity from their predecessor without entering a contract with the supplier.

(⁸⁹) ‘Gas’ may count as a ‘personal chattel’ for the purposes of the Sale of Goods Act 1979, s. 61(1); Benjamin § 1–087 . The definition of ‘goods’ is identical for the purposes of the strict implied terms in con tracts for the transfer of goods: Supply of Goods and Services Act 1982, ss. 4, 18.

(⁹⁰) Above, pp. 235–42, 273; The 1977 Act, s. 6(2). In the following discussion, it would also be a question whether the customers under ‘deemed contracts’ would be treated in the same way as customers under actual contracts.

(⁹¹) Benjamin § 1–085 . East Midlands Electricity Board v Grantham [1980] CLY 271 held that electricity was not ‘goods’ for the purposes of the Companies Act.

(⁹²) Supply of Goods and Services Act 1982, s. 13.

(⁹³) Water Industry Act 1991, s. 52.

(⁹⁴) Above, pp. 163, 179–83, 224–5.

(⁹⁵) Sellars v Best [1954] 1 WLR 913 (Electricity Supply Regulations 1937).

(⁹⁶) Water Industry Act 1991, s. 209(1).

(⁹⁷) Hartley v Mayoh [1953] 2 All ER 525 affd. as to liability in negligence [1954] 1 QB 383.

(⁹⁸) Read v Croydon Corpn., cit.

(⁹⁹) Spartan Steel & Alloys v Martin [1973] 1 QB 27; Anglian Water Services Ltd v Crawshaw Robbins & Co. Ltd. [2001] BLR 173 [115]–[117].

(¹⁰⁰) Above, pp. 224–5.

(¹⁰¹) Anglian Water Services Ltd v Crawshaw Robbins & Co. Ltd., cit. [125].

(¹⁰²) Above, pp. 136–7.

(¹⁰³) Above, p. 137.

(¹⁰⁴) Above, pp. 137–8.

(¹⁰⁵) Ibid.

(¹⁰⁶) Above, p. 138.

(¹⁰⁷) Ibid.

(¹⁰⁸) Ibid.

(¹⁰⁹) Above, pp. 218–21.

(¹¹⁰) Below, pp. 476, 589.

(¹¹¹) Coggs v Bernard (1703) 2 Ld Raym 909, 913, 917–18.

(¹¹²) Below, pp. 283, 284.

(¹¹³) On this see Chitty on Contracts, Chap. 35.

(¹¹⁴) Railways Act 1921, s. 1, Sch. 1.

(¹¹⁵) Transport Act 1947, Part II and s. 39.

(¹¹⁶) Under the Transport Act 1962, the British Transport Commission was abolished and the British Railways Board created.

(¹¹⁷) Railways Act 1993.

(¹¹⁸) The primary regulator at the time of writing is the Strategic Rail Authority set up by the Transport Act 2000, Part IV, but in July 2004 a further restructuring of the rail industry was announced by the Minister of Transport.

(¹¹⁹) The leading legislation was the Transport Act 1985.

(¹²⁰) See below, p. 282 for the exception.

(¹²¹) Clarke v West Ham Corpn. [1909] 2 KB 858, 882, per Kennedy LJ and see generally Chitty on Contracts, §§36–007 et seq.

(¹²²) Coggs v Bernard (1703) 2 Ld Raym 909, 917–18.

(¹²³) Readhead v Midland Rly. Co. (1867) LR II QB 412, (1869) LR IV QB 379; O’Connor v British Transport Commission [1958] 1 WLR 346.

(¹²⁴) Ansell v Waterhouse (1817) 6 M & S385; Bretherton v Wood (1821) 3 Brod and Bing 54; Foulkes v Metropolitan District Rly. (1880) 5 CPD 157; O’Connor v British Transport Commission, cit.

(¹²⁵) Nicholson v Willan (1804) 5 East 507; Shaw v York & North Midland Rly. Co. (1849) 13 QB 347; Peek v North Staffs Rly. Co. (1862–3) 10 HLC 473, 494.

(¹²⁶) Since 1963 neither the nationalised railways nor the modern train operators are ‘common carriers’ by express legislative exclusion: Transport Act 1962, s. 43(6); Railways Act 1993, s. 123.

(¹²⁷) O’Connor v British Transport Commission, cit.; Barkway v South Wales Transport Ltd. [1950] 1 All ER 392.

(¹²⁸) E.g. Chadwick v British Railways Board [1967] 1 WLR 912 (which concerned liability for the plain tiff’s ‘nervous shock’ after acting as a rescuer at a railway accident which claimed 90 lives).

(¹²⁹) Clarke v West Ham Corpn. [1909] 2 KB 858, 875, 880.

(¹³⁰) Above, p. 232.

(¹³¹) (1867) LR II QB 412, (1869) LR IV QB 379.

(¹³²) (1869) LR IV QB 379, 383–4.

(¹³³) Ibid., 386.

(¹³⁴) (1869) LR IV QB 379, 385.

(¹³⁵) Ibid., 384, per Montague J for the court.

(¹³⁶) Ibid., 393.

(¹³⁷) While a carrier can be the ‘occupier’ of the means of carriage as ‘premises’ it is unlikely that this changes the basis of liability except as regards unlawful passengers: Occupiers Liability Act 1957, s. 2; Occupiers Liability Act 1984, s. 1.

(¹³⁸) O’Connor v British Transport Commission [1958] 1 WLR 346, 351.

(¹³⁹) Ibid.

(¹⁴⁰) Ibid., 349.

(¹⁴¹) O’Connor v British Transport Commission [1958] 1 WLR 351, per Sellers LJ.

(¹⁴²) Above, p. 165.

(¹⁴³) Barkway v South Wales Transport Ltd, cit. and cf. above, pp. 209–10.

(¹⁴⁴) (1862) 7 H & N 987.

(¹⁴⁵) Ibid., 992.

(¹⁴⁶) Ibid., 993.

(¹⁴⁷) Thomas v Rhymney Rly. Co. (1871) LR 6 QB 266, 274.

(¹⁴⁸) Chitty on Contracts, para. 36–057 .

(¹⁴⁹) National Rail Conditions of Carriage (ed. 2000), clause 5, § 1.

(¹⁵⁰) Ibid., clause 5, § 2(c) .

(¹⁵¹) Unfair Contract Terms Act 1977, s. 3; Unfair Terms in Consumer Contracts Regulations 1999.

(¹⁵²) Above, pp. 139–41.

(¹⁵³) Above, pp. 90, 141.

(¹⁵⁴) Above, p. 141.

(¹⁵⁵) Above, pp. 141–6, 149–51.

(¹⁵⁶) Below, pp. 289–91.

(¹⁵⁷) Below, pp. 291–2.

(¹⁵⁸) National Audit Office, Handling clinical negligence claims in England (3 May 2001), 6 .

(¹⁵⁹) Ibid., 5 . These are the Medical Defence Union and the Medical Protection Society.

(¹⁶⁰) (1767) 2 Wils KB 359.

(¹⁶¹) Ibid., 360 .

(¹⁶²) Ibid., 362 .

(¹⁶³) Pippin v Sheppard (1822) 11 Price 400.

(¹⁶⁴) Ibid., 409, per Garrow B.

(¹⁶⁵) See also Seare v Prentice (1807) 8 East Rep 348; Gladwell v Steggall (1839) 5 Bing (NC) 733.

(¹⁶⁶) Above, p. 188.

(¹⁶⁷) Sidaway v Bethlem Royal Hospital [1985] AC 871; Bolitho v City and Hackney HA [1998] AC 232.

(¹⁶⁸) Mahon v Osbourne [1939] 2 KB 14 (CA) (swab left in patient after surgery).

(¹⁶⁹) Ratcliffe v Plymouth and Torbay HA [1998] PIQR P170, P189–P190.

(¹⁷⁰) Above, pp. 209–10.

(¹⁷¹) Knight v Home Office [1990] 3 All ER 237 (QBD).

(¹⁷²) Brooks v Home Office [1999] 2 FLR 33 (QBD).

(¹⁷³) Thake v Maurice [1986] 1 QB 644, 685.

(¹⁷⁴) See in particular Perionowsky v Freeman (1866) 4 Foster and Finl 977, 981, per Cockburn CJ; Cassidy v Ministry of Health [1951] 2 KB 343, 361, per Denning LJ.

(¹⁷⁵) [1909] 2 KB 820.

(¹⁷⁶) Ibid., 825.

(¹⁷⁷) Ibid., 826.

(¹⁷⁸) Ibid., 828–9.

(¹⁷⁹) Ibid., 829.

(¹⁸⁰) Cassidy v Ministry of Health [1951] 2 KB 343, 360.

(¹⁸¹) [1942] 2 KB 293.

(¹⁸²) [1942] 2 KB 293, 296–7.

(¹⁸³) Ibid.

(¹⁸⁴) Ibid., 303–04, 309.

(¹⁸⁵) Ibid., 310.

(¹⁸⁶) National Health Service Act 1946.

(¹⁸⁷) Collins v Hertfordshire CC [1947] KB 598. Cf. Lindsey CC v Marshall [1937] AC 97 (patient in public nursing home not warned of previous cases of serious infectious disease).

(¹⁸⁸) [1951] 2 KB 343.

(¹⁸⁹) Ibid., 359–60.

(¹⁹⁰) Ibid., 362.

(¹⁹¹) Ibid., 364.

(¹⁹²) National Health Service Hospital Medical and Dental Staff and Doctors in Public Health Medicine and the Community Health Service (England and Wales) Terms of Conditions of Service (updated to 2003), approved by the Secretary of State for Health.

(¹⁹³) Ibid., conditions 40–43 allow all employees to engage in private practice, subject to certain condi tions. By contrast, from 2003 NHS general practice has taken place under contracts with group practices rather than with individual practitioners under a particular form of contract for services: New General Medical Services Contract for General Practitioners: see 〈http://www.nhsconfed.org/gmscontract/〉.

(¹⁹⁴) M v Calderdale and Kirklees HA (Huddersfield County Court) [1998] Lloyd’s Rep Med 157 cited with approval by Clerk and Lindsell on Torts, para. 8–64 .

(¹⁹⁵) Pfizer Corpn. v Ministry of Health [1965] AC 512.

(¹⁹⁶) Ibid., 535–6 (Lord Reid).

(¹⁹⁷) Re Medicaments Ref. (No. 2) [1970] 1 WLR 1339; Reynolds v Health First Medical Group [2000] Lloyds’ Rep Med 240 (Hitchin County Court).

(¹⁹⁸) Supply of Goods and Services Act 1982, s. 4, above, p. 273.

(¹⁹⁹) Above, p. 273.

(²⁰⁰) I. Dodds-Smith and M. Spencer, Product liability for medicinal products in Powers and Harris, Clinical Negligence (3rd. edn., 2000) 835, 842 et seq . There have been a number of cases where claims for negligence against a manufacturer of a pharmaceutical have been settled: e.g. claims against Glaxo in respect of ‘myodil’ referred to in Rawlinson v North Essex HA [2000] Lloyd’s Rep Med 54. For an example of liabil ity, see below, pp. 295–9 concerning the Creutzfeldt Jakob Disease Litigation.

(²⁰¹) [1932] AC 562. For recovery for psychiatric injury see below, pp. 298–9.

(²⁰²) E.g. Loveday v Renton The Times, 31 March 1988 (transcript) (no causal link established between ‘whooping cough’ vaccine and brain damage in young children).

(²⁰³) Dodds-Smith and Spencer, op. cit. n. 200, 860 .

(²⁰⁴) Above, p. 203.

(²⁰⁵) Wright v Dunlop Rubber Co. Ltd. (1972) 13 KIR 255.

(²⁰⁶) Dodds-Smith and Spencer, op. cit. n. 200, 864–5 .

(²⁰⁷) Cf. above pp. 198–9, and see below, pp. 354–6.

(²⁰⁸) Dodds-Smith and Spencer, op. cit. n. 200 , 863–5.

(²⁰⁹) Cf. Holmes v Ashford [1950] 2 All ER 76 (hairdye manufacturer entitled to rely on warnings given with product and ignored by hairdresser).

(²¹⁰) This results from a complex of EU legislation and practice set out conveniently in Guideline on the Packaging Information of Medicinal Products for Human Use authorised by the Community (August 2002) , published at 〈http://pharmacos.eudra.org〉.

(²¹¹) Above, p. 195.

(²¹²) Dodds-Smith and Spencer, op. cit. n. 200 , 867.

(²¹³) Association of British Pharmaceutical Industry, The Cost of Medicines—Good Value for Patients (2001) 4 , available at 〈http://www.abpi.org.uk/publications〉.

(²¹⁴) (20 Jan 1989) (QBD) 87 NLJ 938 (LexisNexis transcript).

(²¹⁵) The plaintiffs also sued three other manufacturers against whom no arguments were made in the hearing; the Wellcome Foundation Ltd. joined the proceedings as the parent company of the first manufac turing company which had ceased in trading.

(²¹⁶) Below, pp. 521–7.

(²¹⁷) It was later alleged that this collection had generally been unlawful since no protocol had been devel oped to gain appropriate consents and that the removal had not complied with the provisions of the Human Tissue Act 1961: The Creutzfeldt-Jakob Disease Litigation (1995) (2000) 54 BMLR 1.

(²¹⁸) Their claim based on the tort of battery (unlawful physical touching) on the ground that their con sents to the injections of HGH had been invalid owing to the unlawful collection of pituitaries was struck out as ‘deplorable’ and ‘insupportable in law’: The Creutzfeldt-Jakob Disease Litigation (1995) (2000) 54 BMLR 1.

(²¹⁹) The main decisions are:The Creutzfeldt-Jakob Disease Litigation, Plaintiffs v United Kingdom Medical Research Council (July 1996) [1996] 7 Med. LR 309; (2000) 54 BMLR 8 (main trial and decision on Group A plaintiffs); The Creutzfeldt-Jakob Disease Litigation, Newman v United Kingdom Medical Research Council (November, 1997) (2000) 54 BMLR 85 (Court of Appeal, appeal on aspects of main trial decision); The Creutzfeldt-Jakob Disease Litigation, Newman v Secretary of State for Health (No. 2) (2000) 54 BMLR 95; The Creutzfeldt-Jakob Disease Litigation, Group A and C Plaintiffs (April and May 1998) (2000) 54 BMLR 100 and 104 (both ‘straddlers’ claims’); The Creutzfeldt-Jakob Disease Litigation, Group B Plaintiffs v United Kingdom Medical Research Council (December, 1997) [2000] Lloyd’s Rep. Med. 161, (2000) 54 BMLR 92; The Creutzfeldt-Jakob Disease Litigation, Andrews v Secretary of State for Health (Damages Assessments)(June, 1998) (2000) 54 BMLR 111. The significance of these descriptions will appear from the following text. Subsequent references to these cases will omit the reference to the CJD litigation.

(²²⁰) [1996] 7 Med LR 309, 317.

(²²¹) Cf. the position of the Group B plaintiffs, below, pp. 298–9.

(²²²) [1996] 7 Med LR 309, 318.

(²²³) Ibid.

(²²⁴) This term was used Ibid., 311.

(²²⁵) Ibid., 318.

(²²⁶) Ibid., 317 and see above, p. 196.

(²²⁷) Ibid.

(²²⁸) [1996] 7 Med. LR 337.

(²²⁹) Ibid.

(²³⁰) Ibid., 334.

(²³¹) Ibid., 332.

(²³²) Ibid., 335.

(²³³) Ibid., 334.

(²³⁴) Ibid., 315.

(²³⁵) Ibid., 332.

(²³⁶) Newman v United Kingdom Medical Research Council (2000) 54 BMLR 85 (CA).

(²³⁷) [1996] 7 Med LR 309, 316.

(²³⁸) Newman v United Kingdom Medical Research Council (November, 1996) (2000) 54 BMLR 12 (CA); Newman v Secretary of State for Health (No. 2) (2000) 54 BMLR 95; Group A and B Plaintiffs (April, 1998) (2000) 54 BMLR 104.

(²³⁹) Group A and C Plaintiffs (2000) 54 BMLR 100.

(²⁴⁰) Group B Plaintiffs v United Kingdom Medical Research Council (2000) BMLR 92, [2000] Lloyd’s Rep Med 161. For the decisions as to the assessment of their damages see Andrews v Secretary of State for Health (2000) 54 BMLR 111.

(²⁴¹) Page v Smith [1996] 1 AC 155; White v Chief Constable of South Yorkshire [1999] 2 AC 455, above, pp. 161–2.

(²⁴²) [2000] Lloyd’s Rep Med 161, 164.

(²⁴³) Ibid., 165.

(²⁴⁴) Ibid., 166.

(²⁴⁵) Ibid. 169.

(²⁴⁶) Above, pp. 291–2.

(²⁴⁷) Above, pp. 142–6, 151–3.

(²⁴⁸) Above, pp. 287–91.

(²⁴⁹) Above, pp. 289–91.

(²⁵⁰) Above, pp. 143–6.

(²⁵¹) Above, pp. 31–3.

(²⁵²) Ibid.

(²⁵³) Above, pp. 142–3.

(²⁵⁴) Ibid.

(²⁵⁵) Above, p. 143.

(²⁵⁶) Above, pp. 146–7.

(²⁵⁷) Above, pp. 148, 291–2.

(²⁵⁸) Above, pp. 151–5, 287.

(²⁵⁹) Below, pp. 380–6.