• In the case of A v National Blood Authority [2001] 3 All E.R. 289, it was held that, where there is a known risk that blood samples may result in a defect occurring after a transfusion, a producer cannot evade responsibility by arguing that they had been unable to identify the products in which the defect would occur. Fault-related factors such as the ability to avoid the risk and cost of precautions are not circumstances that affect the safety levels the public is entitled to expect.

Facts of the Case

  • C (consisting of 114 people) were infected with Hepatitis C virus from blood transfusions organised by D since 1988.
  • It was known that there was a risk that the samples involved carried the virus, but it was impossible to avoid the risk.
  • In the earliest transfusions from this date, it was unknown that the donor’s blood contained the virus.
  • In all cases of transfusion, there were no tests available that could detect the presence of the virus.
  • C sued D under the Consumer Protection Act 1987, arguing that since D had organised the transfusions, D was strictly liable despite the absence of fault.
  • D argued that the inevitability of risk should be considered in determining the level of safety the public can expect under the 1987 Act.

Issues

  • Were the inevitability of risk and the cost of precautions circumstances that should affect the level of safety the public is entitled to expect?

Held by the Queen’s Bench Division

  • Finding for C, that the question of avoidability, the impracticability of taking precautions and the benefit of the blood samples to society, were not factors which the court had to consider when determining liability.
  • Public knowledge of the risks could be considered, but the risk in this case had not been made known to the wider public. The 1987 Act did not afford a defence where it was known that the product could have harmful consequences.
  • The public were entitled to expect that blood transfused to them would be free from infection. As such, D was liable.

Mr Justice Burton

  • D are required to produce the blood, and, they argue, had no alternative but to supply it as a service to society. D submits this as a factor when considering liability, because they have no option to withdraw from the market or incur liability.
  • C argues that there is no automatic reason why the public’s expectation of safety should be lowered, unless the blood is known to be defective, or at risk of being defective. C also argues that there is no necessary reason why a public authority or non-profit organisation should be in any different position if the product is unsafe.
  • The public does not actually expect that the blood supplied was not 100% clean, nor were they aware of the risk of infection. D has not seriously argued that there was any public understanding or acceptance of the risk. Doctors were rarely asked by their patients about the risk.
  • “I do not consider that the legitimate expectation of the public at large is that legitimately expectable tests will have been carried out or precautions adopted. Their legitimate expectation is as to the safeness of the product. The Court will act as what Dr Bartl called the appointed representative of the public at large, but in my judgment, it is impossible to inject into the consumer’s legitimate expectation matters which would not by any stretch of the imagination be in his actual expectation. He will assume perhaps that there are tests, but his expectations will be as to the safeness of the blood. In my judgment, it is as inappropriate to propose that the public should not ‘expect the unattainable’-in the sense of tests or precautions which are impossible-at least unless it is informed as to what is unattainable or impossible, as it is to reformulate the expectation as one that the producer will not have been negligent or will have taken all reasonable steps” [56].