The NHS faces a bill of up to £10m ($15m) in compensation and costs after a landmark High Court victory this week for 114 people who became infected with hepatitis C from blood transfusions.
Under “no fault” legislation on product liability, which has been little used since it came into force in 1988, Mr Justice Burton held that the National Blood Authority and its Welsh counterpart, the Velindre NHS Trust, were liable even if they were not negligent in supplying the blood.
The case is the first group action to reach court under the Consumer Protection Act, brought in to implement a European directive on product liability that made producers and suppliers of defective products liable for injuries caused by their products without proof of fault.
The ruling, which is likely to be appealed against, is a blow for the NHS. Unless overturned, the ruling will pave the way for other claims against the service over medical products. Lawyers are already using the act in a multimillion pound action against three manufacturers of the MMR (measles, mumps, and rubella) vaccine.
Under the act, a defective product is one that is not as safe as the public is entitled to expect. The blood authorities argued that they took reasonable steps to avoid transmitting hepatitis C in blood and should not be liable. But the judge ruled that the public was entitled to expect clean blood and that, once a risk was known about anywhere in the world, the producers should insure themselves or take other steps to cover themselves against the risk of defects in their products.
Hepatitis C was identified in May 1988, but for years before that, a non-A, non-B hepatitis virus was known to cause infection after blood transfusions. The United Kingdom started screening blood for the virus in September 1991, later than most other countries in the developed world. The judge said the NHS should have taken steps sooner to reduce the risk of transmitting the virus in blood and should have introduced screening by March 1990.
The judge awarded sums ranging from £10000 to over £210000 to six representative claimants. The largest sum was for a woman aged 56 who had to have a liver transplant.