Alison Marianne Worsley v Tambrands Ltd
| Jurisdiction | England & Wales |
| Judge | Mrs. Justice Ebsworth |
| Judgment Date | 03 December 1999 |
| Neutral Citation | [1999] EWHC 273 (QB) |
| Docket Number | Case No. 1998-W-613 |
| Court | Queen's Bench Division |
| Date | 03 December 1999 |
[1999] EWHC 273 (QB)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
Royal Courts of Justice
Mrs. Justice Ebsworth
Case No. 1998-W-613
Mr. J. Grace Q.C. and Ms. A. Garrett (instructed by Messrs. Gadsby Wicks, Chelmsford) appeared on behalf of the Claimant.
Mr. M. Spencer Q.C. and Ms. E. Power (instructed by Messrs. Davies Lavery) appeared on behalf of the Defendant.
This is a judgment on a submission of no case by Mr. Spencer Q.C. on behalf of the defendant in this action. I decided that the Civil Procedure Rules allow for such submissions to be made and that I had a discretion whether or not to put him to his election whether or not to call evidence. My attention was invited to the decision of Mr. David Foskett Q.C. in Mullan v. Birmingham City Council given at Birmingham on 27th May 1999. The learned Deputy High Court Judge reviewed the earlier authorities on the point and concluded the new procedural code permits of a more flexible approach to submissions of no case than prevailed before 29th April 1999, given the requirements of case management and the need to meet the overriding objectives in Part I of the Civil Procedure Rules.
I do not consider it necessary to determine whether the case management powers in Part III have any part to play in a submission of no case, but I am satisfied that if, in the circumstances of a particular case, the "overriding objective" will be better served by allowing a submission of "no case" without an election, then I have power to allow such a submission to be made. If there is a narrow issue determinative of the action which can properly be decided on the claimant's evidence alone, then it is obviously sensible and in the interests of both economy and the best use of the court's resources to decide it before embarking on the complex and expensive defence evidence which is not necessary for the determination of the narrow point but which would be necessary for the determination of the action should the submission fail.
This is such a case. The claimant must, to succeed, satisfy me that she can bring herself within ss.1 to 3 of the Consumer Protection Act 1987 or establish in negligence a breach of duty to her, and that without such a breach, she would have behaved differently. My decision on that must depend primarily on her evidence, together with the exhibits produced. Mr. Grace Q.C. agreed (as he had always taken the view that there was a narrow issue which ought to be tried first).
I regard it as unfortunate that by way of case management the parties did not seek the trial of this issue first. I also regard it as unfortunate that when the claimant suggested it belatedly at the outset of the trial on Monday, the defendants chose then not to agree to the course.
The claimant seeks damages for personal injury alleged to have been caused by the defendant. Her damages are agreed, subject to liability, in the total sum inclusive of interest of £35,000. She alleges that she suffered injury in the form of toxic shock syndrome ("TSS") due to her use of a tampon during a menstrual period in July 1994. It is not in dispute that she suffered TSS at that time and was admitted to hospital suffering from that condition. The issues for the court are whether her TSS was caused by her use of a tampon and, if it was, whether the defendant was negligent or in breach of the Consumer Protection Act 1987.
It is not in dispute that at the relevant time the defendant manufactured and put into circulation "Tampax Regular" brand tampon. The claimant alleges that she was using that brand and type of tampon during the menstrual period in which she was admitted to hospital suffering from TSS. There is no dispute about that, and it is plainly established by the evidence.
TSS is a rare illness, so most medical practitioners will never have seen a case. It is caused by toxins produced by certain strains of Staphylococcus Aureus ("S.A."), a common bacteria which lives quite harmlessly on the skin and in the nose, armpits, groin and vagina of about one third of the population at any one time. It occurs in men, women and children, and in women it occurs in non-menstruating women, menstruating women using tampons and menstruating women using hygiene protection other than tampons. A toxin produced by S.A., TSST-1, is believed to be responsible for causing most if not all menstrually-associated cases of TSS.
The issue of causation is highly contentious, and involves a conflict of expert evidence as to whether or not the claimant's TSS was caused or contributed to by the Tampax Regular tampon she was using. The defendant's case is that no causal connection was shown either by the claimant's evidence or at all. There is at most a statistical association between tampon use and TSS.
I have heard two of the claimant's experts, physician Dr. Delamore and Professor Sussman, who is a microbiologist. I have read the defendant's reports from Professor Macrae on the epidemiology of TSS with reference to tampon use; Professor Schlievert, a professor of microbiology; Professor Batchelor, an immunologist; and Dr. Brewer, consultant to the TSS Information Service. I emphasise that they have no part to play in this judgment, and I have deliberately given no indication of any view I have formed as to the claimant's expert evidence.
THE STATUTORY FRAMEWORK
I turn first to the statutory framework. Section 2(1) of the Consumer Protection Act 1987 reads:
"Subject to the following provisions of this Part, where damage is caused wholly or partly by a defect in a product, every person to whom subsection (2) applies shall be liable for the damage."
The criteria, therefore, for liability is defectiveness, not fault. Section 3(1) of the Act defines the meaning of "defect" and reads:
"Subject to the following provisions of this section, there is a defect in a product for the purposes of this Part if the safety of the product is not such as persons generally are entitled to expect; and for those purposes 'safety', in relation to a product, shall include safety with respect to products comprised in that product and safety in the context of risks after damage to property, as well as in the context of risks of death or personal injury."
Section 3(2), which is material for these purposes, reads:
"In determining for the purposes of sub-section (1) above what persons generally are entitled to expect in relation to a product all the circumstances shall be taken into account, including —
(a) the manner in which, and purposes for which, the product has been marketed, its get-up, the use of any mark in relation to the product and any instructions for, or warnings with respect to, doing or refraining from doing anything with or in relation to the product;
(b) what might reasonably be expected to be done with or in relation to the product; and
(c) the time when the product was supplied by its producer to another;
and nothing in this section shall require a defect to be inferred from the fact alone that the safety of a product which is supplied after that time is greater than the safety of the product in question."
The test therefore is objective and the Act imposes a form of strict liability. The claimant must show that the tampon was defective within the meaning of s.2 and that the damage was caused wholly or in part be the defect. This case turns on the nature and extent of the warning and information accompanying the relevant tampons. Were they adequate to warn the claimant of the potential risk associated with tampon use, having regard to the nature of the risk and the potentially life-threatening consequences of TSS?
THE HISTORY
I turn to the history of the matter, as given to me by the claimant in her evidence and in her two witness statements dated 1st April 1998 and 19th November 1999 and her pleaded case. Mrs. Worsley is 34. She is married with two children. She is an intelligent graduate primary school teacher. She has used tampons since she was 15 or 16 years old —— that is, from two or three years after she commenced to menstruate. Soon after that she began to use Tampax Regular. When she first used that brand in 1980 or 1981, she read the leaflet to find out how to use them and thereafter maintained a rigid hygiene routine in respect of her use. It was her habit to change her tampons every three to four hours, save overnight. When she first read the leaflet —— and I have not seen one printed before 1982 —— she recalls reading about toxic shock syndrome and gaining the accurate impression it is extremely rare. She said she assumed you could only get it if you retained a tampon —— that is, kept it in too long.
In 1985 or 1986 Mrs. Worsley read a magazine article about a woman who suffered from TSS with grave consequences. That did not cause her to alter her view about the need to retain a tampon in order to suffer TSS, but it did cause her to reread the leaflet inside her current tampon box. She had, on occasion, looked at the leaflet between 1980/81 and 1985/86, but noticed no changes in it. She concluded TSS was serious, with rapid onset, and that a sufferer would be seriously ill. She did not retain the specific symptoms in her mind, but thereafter kept leaflets to read in case she became seriously ill. In her witness statement she said that 1985/86 until 1994, she was "unaware the leaflet had changed." In 1985/86 she had, according to her evidence in chief, formed the opinion all symptoms needed to be present for TSS and assumed that all she needed to do was follow the advice given (a) to use the...
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