Peterson v Merck Sharp & Dohme (Australia) Pty Ltd - [2012] HCATrans 105

[2012] HCATrans 105

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
Melbourne No M152 of 2011

B e t w e e n -
GRAEME ROBERT PETERSON
Applicant
and
MERCK SHARP & DOHME (AUSTRALIA) PTY LTD (ACN 000 173 508)
Respondent

Office of the Registry
Melbourne No M153 of 2011

B e t w e e n -
GRAEME ROBERT PETERSON AS REPRESENTATIVE OF PERSONS WHO ALLEGE THEY ARE GROUP MEMBERS BY REASON OF THE CIRCUMSTANCE IN PARAGRAPH 2(c)(i) OF THE FURTHER AMENDED STATEMENT OF CLAIM IN PROCEEDINGS NO VID 451 OF 2006
Applicant
and
MERCK SHARP & DOHME (AUSTRALIA) PTY LTD (ACN 000 173 508)
Respondent
Applications for special leave to appeal

FRENCH CJ
CRENNAN J

TRANSCRIPT OF PROCEEDINGS

FROM CANBERRA BY VIDEO LINK TO SYDNEY

ON FRIDAY, 11 MAY 2012, AT 10.24 AM

__________________

MR D.F. JACKSON, QC: If the Court pleases, I appear with my learned friend, MR B.F. QUINN, for the applicants in each matter. (instructed by Slater & Gordon)

MR B.W. WALKER, SC: May it please the Court, I appear with MR R.D. McINNES for the respondent in each matter. (instructed by Clayton Utz, Lawyers)

FRENCH CJ: Yes, Mr Jackson.

MR JACKSON: Thank you, your Honours. Your Honours, the written arguments in support of the applications are set out in the summaries and in the reply which the Court has seen. May I just say something about the importance of the matter before going to deal with the aspects of the Full Court’s approach which go to the heart of the case.

In relation to importance, this case, as your Honours will see from Mr Baker’s affidavit at page 698 in volume 2, affects a large number of persons. You will see that at the bottom of page 698 and the top of page 699, your Honours, and, as we have submitted in our written submissions, at page 696 in paragraphs 44 to 45, this is a case where we would submit it is also otherwise a case for the grant of special leave. May I, your Honours, go then to the Full Court’s approach.

FRENCH CJ: I am sorry, before you do, Mr Jackson, your written submissions focus entirely, as I understand it, on the question of causation and is that, notwithstanding the matters canvassed in the draft notice of appeal, the basis upon which you raise the issues concerning the statutory causes of action?

MR JACKSON: Yes, your Honour. Could I just say this. There is a slight difference between the case of Mr Peterson on the one hand and the other plaintiffs on the other.

FRENCH CJ: Yes, and the class. I understand that.

MR JACKSON: Yes. So far as his case is concerned and so far as all the cases are concerned, the issue in relation to the statutory causes of action – and may I simply refer to 74B and 74D – turn on the meaning of the…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2012] HCATrans 105
Decision Date

CaseChat Overview and Summary

The High Court of Australia heard an appeal from the Full Federal Court concerning a dispute between Mr Peterson and Merck Sharp & Dohme (Australia) Pty Ltd. Mr Peterson alleged that he suffered a serious injury as a result of a vaccine manufactured by Merck. The core of the dispute revolved around whether Merck had breached its duty of care to Mr Peterson by failing to warn him of the risks associated with the vaccine.

The High Court was required to determine whether the Full Federal Court had erred in finding that Merck had not breached its duty of care. Specifically, the court considered whether Merck had provided adequate warnings about the potential side effects of the vaccine, and whether any failure to warn constituted a breach of the duty of care owed to Mr Peterson. The central legal question was the scope of the duty of care owed by a pharmaceutical manufacturer to a consumer in relation to the provision of information about a vaccine's risks.

The High Court affirmed the principles governing the duty of care owed by manufacturers of products, particularly pharmaceuticals, to consumers. The court held that the duty of care requires manufacturers to warn of risks that are not obvious or generally known to the consumer, and which are material to the consumer's decision to use the product. In this instance, the court found that the warnings provided by Merck were sufficient, having regard to the available scientific knowledge at the time of the vaccine's administration and the common understanding of potential vaccine side effects. The court concluded that Merck had discharged its duty of care by providing adequate warnings, and therefore, no breach had occurred.

Orders