Seroxat - important court decisions affecting product liability and personal injury claims

http://www.dac.co.uk/documents/resources/toptens/Product_Liability_and_Personal_Injury_Top_Ten_2006


Last year saw a number of important court decisions affecting product liability and


personal injury claims. Common themes of many were the international nature of the

issues that were grappled with. One case involved English claimants wishing to sue in

the US whilst another concerned Bangladeshi citizens wishing to sue in England. Yet

a third addressed the question of whether an English citizen injured whilst on holiday

was entitled to English or Australian levels of damages. These cases demonstrate the

international nature of product liability and personal injury claims with products

manufactured in one country being marketed worldwide and the globalisation of

international trade and travel.

We are therefore pleased to nominate our Top Ten cases for 2006 – in no particular

order, as they say on Strictly Come Dancing.

More generally, 2006 continued to be a difficult year for claimants in group actions

within the product liability and personal injury field. There are now very few cases

supported by public funding, with the withdrawal of support for the MMR vaccine

and the foetal anticonvulsant cases and the refusal to support other groups such as

Vioxx and Seroxat. Group Litigation Orders also took a knock with the refusal of the

court to issue a Group Litigation Order in the miners’ case of Hobson v Ashton

Moreton Slack.

The absence of many pharmaceutical product liability claims pending trial will deprive

us of the opportunity to clarify the unsatisfactory position left by some aspects of

Mr Justice Burton’s seminal decision in A v National Blood Authority, particularly in

relation to the development risk defence and the applicability of the learned

intermediary rule to prescribed products – two aspects of his judgment most

frequently criticised. Certainly, the signs of the most recent Court of Appeal decision

in Tesco v Pollard suggest that Mr Justice Burton’s purposeful approach to

interpretation of the European Product Liability Directive might not be universally

favoured by the English judiciary. Similarly in the case of Palmer v Palmer, which did

not make the Top Ten, the court took a more traditional approach to deciding

product liability /personal injury

top ten 2006 davies arnold cooper reviews the year’s highlights

whether a product was defective in the context of its being misused. The court found

that a seatbelt which could have excessive slack if not properly fitted was defective

because the risks were not adequately pointed out to consumers within the instruction

leaflet.

On a broader front, July 2006 saw the DTI’s consultation paper on Representative

Actions. Its proposals envisage designated consumer bodies bringing claims on behalf of

named consumers who have suffered similar but financially low-level losses and who

would otherwise be unlikely to be able to seek redress. Consumer groups and the OFT

have criticised the paper as being too modest and are pressing for wider reforms,

including opt-out proposals whereby all members of a class are included within a claim

unless they specifically choose not to be. These organisations are also seeking costs

regimes inconsistent with the principle that the loser pays the costs of the winner. There

will be a need to monitor developments on this front.

On the consumer safety side, the General Product Safety Regulations of 2005 have

now implemented the revised General Product Safety Directive and apply to all

products to the extent that sector-specific directives do not apply, and in respect of

notification obligations, now cover all industries except for food and pharmaceuticals

which are more comprehensively regulated by their own regulations.

Finally, the Corporate Manslaughter and Corporate Homicide Bill is going through

Parliament. It will make it easier to prosecute companies for manslaughter by removing

the focus on individual failings and looking at the conduct of senior management

collectively. It is considered in our D&O / Financial Institutions Top Ten 2006.

With such major issues up in the air, 2007 is bound to be an interesting year.

Davies Arnold Cooper

January 2007