You are here

Vaccine claimant can sue substitute defendant after limitation period ends

10 October 2007

A child who claims he became disabled as a result of a defective vaccine should be allowed to sue the manufacturer, rather than the distributor of the product, even though the time limit under the Product Liability Directive has expired, the Court of Appeal has ruled (O'Byrne v Aventis Pasteur SA [2007] EWCA Civ 939).

Declan O’Byrne was given two doses of an anti-meningitis vaccine produced by Aventis Pasteur when he was one year old. He subsequently suffered severe brain damage which his family says was caused by the vaccine.

Proceedings were initially brought against the importer of the vaccine, an English subsidiary of Aventis Pasteur, which defended the claim on the basis that, as the importer, it was not the appropriate defendant under the Consumer Protection Act 1987, which implements the directive.

It was only over ten years later, after the limitation period in the Act had expired, that the importer clearly identified its parent company as the manufacturer, following which the claimant applied for and was granted a substitution of parties under s35 of the Limitation Act 1980.

The Court of Appeal had already held in similar circumstances in Horne-Roberts v SmithKline Beecham [2001] EWCA Civ 2006 that a new party could be substituted and the proceedings continue despite the expiry of the limitation period, provided there was a mistake as to the original party and that the substitution is necessary to allowing the pursuit of the claim.

In O’Byrne, it took a reference to the European Court of Justice to determine that it was for national law to determine the conditions in accordance with which a party may be substituted for another (case C-127/04).

Dismissing the appeal against the decision allowing the substitution, Sir Anthony Clarke MR said: ‘Given the fact that [the parent company] now accepts that there was a relevant mistake within the meaning of s35, it follows that the substitution was necessary for the purpose of determining the original action within the meaning of s35(5) and (6) and that, given that [the parent company] does not challenge the way in which the judge exercised his discretion, the appeal must be dismissed.”

For the claimant, it now remains to demonstrate that the vaccine was defective and that there is a causal relationship between the defect and the damage suffered.

Categorised in:

Company, Consumer, and Contract Procedures Professional negligence Clinical negligence