Thalidomide

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Thalidomide

  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name Distaval. The drug was mainly given to pregnant women for morning sickness. On 27 November 1961 Thalidomide was withdrawn in the UK from the British manufacture Distillers Biochemical LTD.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”.http://www.hrcr.org/safrica/limitations/sunday_times_uk.html
  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

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