A and Others v. National Blood Authority Lawsuit

A and Others v. National Blood Authority

The product and its "producer." This case concerned a biological product rather than a manufactured one: blood and blood products supplied for transfusion, along with transplanted organs, by the United Kingdom's National Blood Authority (NBA). The NBA — the public body responsible for the NHS blood service — was the principal defendant, with the Velindre NHS Trust in Cardiff named in respect of Wales. The claimants were 114 individuals, six of whom were treated as lead claimants and given close consideration by the trial judge; several of the claimants were minors who became infected while undergoing treatment for leukaemia.

The harm. The claimants contracted hepatitis C through NHS-supplied blood and blood products. The litigation arose within the wider United Kingdom contaminated blood scandal, in which related proceedings — the HIV haemophilia litigation — had already raised questions about the historical precautions taken against viral transmission in the blood supply. The central legal question in this case was whether infected blood could be treated as a defective "product" at all. The court accepted that blood for transfusion and organs for transplantation could count as natural substances under section 45(1) of the Consumer Protection Act 1987, and that hepatitis C–infected blood bags could be non-standard products at variance with the producer's intended use, even though the defendants argued that all blood, as a natural raw material, carried inherent risk.

The litigation. At first instance, Mr Justice Burton held that the infected blood supplied on and after 1 March 1988 failed to provide the safety that recipients were entitled to expect, taking all circumstances into account under Article 6 of the EU Product Liability Directive (85/374/EEC), and was therefore a defective product. He further found that the United Kingdom should have introduced surrogate testing no later than 1 March 1988, and that donated blood should have been screened for the hepatitis C virus by March 1990 rather than September 1991. The case then reached the House of Lords, the court of record for this entry, which in 2001 held that the authority was liable under the Consumer Protection Act as the producer of the blood, per the Infected Blood Inquiry record (https://www.infectedbloodinquiry.org.uk/sites/default/files/2023-06-09%20Oral%20Evidence%20Docs%20-%20Row%202701-2900%20%20copy/2023-06-09%20Oral%20Evidence%20Docs%20-%20Row%202701-2900%20%20copy/NHBT0000026_009%20-%20Witness%20Statement%20of%20Harold%20Hastings%20Gunson%20-%2003%20Jan%202000.pdf). The ruling was the first to impose strict liability for a blood product under the statute, and it was the first group action brought under the Consumer Protection Act 1987; liability was established without any finding of fault against the National Blood Authority.

The outcome and significance. The case is recorded as resolved by verdict in 2001. Lord Morris of Manchester, then president of the UK Haemophilia Society, described the judgment as a landmark decision of considerable interest to the many others infected through NHS-supplied blood products. The ruling prompted debate in the House of Lords over its implications for the National Health Service — in a debate on 23 March 2001, the Parliamentary Under-Secretary of State for Health said the implications of the judgment would require careful consideration — and it contributed to reshaping transfusion-safety policy in the United Kingdom.