This document discusses the history and legal issues surrounding the drug Thalidomide. It was introduced in the late 1950s as a treatment for morning sickness but was found to cause severe birth defects. Over 400 victims in the UK suffered disabilities from missing or deformed limbs. Victims and their families struggled to obtain compensation through the legal system due to difficulties proving negligence. This led to a long campaign and eventual settlement establishing support for thalidomide victims through a trust fund.

1. Contract and Consumer law

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 On 27 November 1961 Thalidomide was withdrawn in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.  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.  The victim's 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.  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.  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.  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.  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.  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.  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