Country:

Netherlands

Court:

Rb. Amsterdam 3 February 1999, NJ 1999, 621 (HIV-contaminated blood)

Topics:

Expected safety

Development risk defense

Articles:

Art. 6 al. 1 (opening line)

Art. 7 sub e

Facts:

During a heart surgery the claimant received HIV-infected blood. It was assumed that the blood had been given by a donor who had only just contracted HIV, such that his infection could not be detected by a test during what has been called 'the window period'.

Legal questions:

(1) What was the claimant entitled to expect with regard to the safety of the donor blood as provided in art. 6?

(2) Was the producer entitled to invoke the development risk defence?

Decisions:

(1) The District Court agreed with the claimant that, '... taking into account the vital importance of blood products and that in principle there is no alternative, the general public expects and is entitled to expect that blood products in the Netherlands have been 100% HIV-free for some time. The fact that there is a small chance that HIV could be transmitted via a blood transfusion, which the Foundation (defendant) estimates at one in a million, is in the opinion of the Court not general knowledge. It cannot therefore be said that the public does not or cannot be expected to have this expectation.' (Translation from A. v. The National Blood Authority [2001] 3 All ER 289, nr. 44 iii).

(2) The court decided that the development risk defence does not only apply to the knowledge of the risk but also to the avoidability of it. Since in this case it was scientifically impossible to detect the HIV contamination during the so-called window period, the court dismissed the claim of the patient.

Comments:

This case has been quoted in the English NBA-case.

(2) In the English NBA-case and the German Mineral Water Bottle-case it was held that the development risks defence only applies to the fact whether the risk could be known, not whether it could be avoided. The latter view can considered to be the right one. This means that the Amsterdam District Court wrongly dismissed the claim of the patient.