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  1. 1. Contract and Consumer law
  2. 2.  Thalidomide first appeared in Germany in October 1957 The drug was introduced to the UK in 1958 under its brand name Distaval. The drug was mainly given to pregnant women for morning sickness. On 27 November 1961 Thalidomide was withdrawn in the UK from the British manufacture Distillers Biochemical LTD.
  3. 3.  The first British thalidomide victim was born in January 1959. There are currently 455 thalidomide survivors in the UK. In 1976 it was revealed that Distillers had not met the basic testing requirements of the time.
  4. 4.  The victims disabilities range from missing limbs and internal deformities. it is estimated around 40% of thalidomide victims died before their first birthday. The Thalidomide Trust was established in August 1973, to provide support
  5. 5.  Sue for tort of negligence – civil law High court – Queen’s Bench First case Donoghue v Stevenson 1932 Must prove duty of care and breach of duty i.e. fault The Congenital Disabilities (Civil Liability) Act 1976 – duty of care owed to unborn child
  6. 6.  Breach of duty hard to prove – what would other manufacturers have done? Had they taken all reasonable care? Daniels v White & Son – 14 year old girl sniffing bottles of lemonade – breach of duty not proved Difficult /impossible to prove breach – Distillers would claim they tested product as any other manufacturer would have done – drug was licensed Any compensation – out of court settlement
  7. 7.  Now strict tortious liability under Consumer Protection Act 1984 part 1 No need to prove fault But state of art defence would allow manufacturer to escape liability State of scientific and technical knowledge – manufacturer would only have to carry out tests known at the time and those that other manufacturers would carry out Claim would still fail
  8. 8.  The parents of British Thalidomiders were forced to fight a protracted court battle for compensation. In 1968 a deal was negotiated with Distillers which gave 62 victims compensation in an out of court settlement (40% of what they might have won if court case had been successful) After 1968 many out of court settlements followed "Y-list“ - 98 children who were suspected of suffering deformities due to the drug, but who could not prove it and so were unable to claim compensation.
  9. 9.  In 1972, The Sunday Times published the first in a series of articles under the headline “Our Thalidomide Children: a Cause for National Shame” An injunction was issued to stop the campaign The Sunday Times then decided to fight the injunction on its investigation into the origins and testing of the drug. The case went right through the British legal system and up to the European Court of Human Rights, which decided that the injunction violated the right of “freedom of expression”.
  10. 10.  1973 after 11 year campaign Distillers agreed to pay £20 million and to set up a trust fund for victims In 2005 Distillers, now part of Diageo, agreed an extra one-off payment worth 70% of the annual payments In 2010 Government issues long-awaited apology and a new £20m compensation package to 466 thalidomiders Currently in the UK victims receive, on average £18,000 a year