Product liability

O’Byrne v Aventis Pasteur SA [2007] All ER (D) 114 (Oct); NLJ 19 October; LSD 25 October

When the claimant was one-year-old, he had been vaccinated with two doses of the Hib vaccine. Thereafter, he had suffered brain damage. He commenced proceedings against the company his solicitors believed to be the manufacturer or producer of the vaccine. It was accepted that this was a genuine mistake for a related company, but the application to substitute the correct manufacturers for the defendant was not made until after the expiry of the 10-year period for enforcing rights conferred by Directive 85/374 on liability for defective products on s11A(3) of the Limitation Act 1980. Section 35(6) of the Limitation Act 1980 provides that the addition or substitution of a new party cannot be regarded as necessary unless: (i) there was a relevant mistake; or (ii) an existing claim against the original party could not be maintained without the joinder or substitution of the new party. Thus, if there was either a mistake of a kind sufficient to satisfy (i) or the kind of necessity identified in (ii), then the test of necessity in s35(5) is satisfied, but not otherwise. A party may therefore be substituted under s35 where the 10-year limitation period for making a claim for damages caused by a defective product has expired, even where the correct party was known to the claimant before the limitation period expired, if the claimant made the mistake about the name of the defendant and substitution was necessary for the purpose of determining the original action. Accordingly, the judge was correct that where the new party was to be substituted for a party whose name had been given in the claim and the original action by mistake for the new party’s name, substitution is to be regarded as necessary for the determination of the original action.