- Published on
KembaraXtra-Case Law -Veedfald v Arhus Amtskommune (2001)
Key Principle: Establishes liability under the EU Directive 85/374 for defective medical products even when the patient does not directly pay for the treatment/product.
I. Background
Key Principle: Establishes liability under the EU Directive 85/374 for defective medical products even when the patient does not directly pay for the treatment/product.
I. Background
- Context: Case involved a referral from the Supreme Court of Denmark to the European Court of Justice (ECJ) regarding interpretation of Articles 7 & 9 of EU Directive 85/374 (Product Liability Directive).
- Claimant: Received a defective kidney. Damage was caused by the perfusion fluid used during organ preparation.
- Defendant (Arhus Amtskommune): Argued exemption from liability based on two grounds:
- Product not "put into circulation".
- Product not manufactured for an "economic purpose".
- "Putting into Circulation": Any product used in the provision of medical care is considered "put into circulation."
- "Economic Purpose" Exemption (Article 7(c)): This exemption does not apply to publicly funded medical care. Even if the entity providing the care is non-profit, the activity itself has an economic dimension.
- Relevance: The case interprets the EU Directive, which is implemented in the UK via the Consumer Protection Act 1987.
- CPA Section 4(c) Defence: This section provides a defence against liability if:
- (i) The only supply of the product was not in the course of a business AND
- (ii) Section 2(2) does not apply (or only applies due to activities not aimed at profit).
- Impact on NHS:
- Both conditions in s4(c) MUST be satisfied for the defense to be valid.
- Therefore, the fact that the NHS is non-profit is not sufficient for a defense under s4(c).
- This is supported by the case of A and Others v National Blood Authority (No 1)
- Publicly funded healthcare providers can be liable for defective medical products under the Directive/CPA, even if no direct payment is made by the patient.
- The non-profit nature of a healthcare provider does not automatically exempt it from liability. The focus is on whether the activity has an economic aspect.
- What were the defendant's arguments for exemption from liability in Veedfald?
- How did the ECJ define "putting into circulation" in the context of medical products?
- Explain the relevance of CPA section 4(c) to the Veedfald case.
- Why does the fact that the NHS is non-profit not provide a guaranteed defense against liability for defective medical products?
0 Comments