Merck Sharp & Dohme (Australia) Pty Ltd v Peterson [2011] FCAFC 128

FEDERAL COURT OF AUSTRALIA

Merck Sharp & Dohme (Australia) Pty Ltd v Peterson [2011] FCAFC 128 Citation: Merck Sharp & Dohme (Australia) Pty Ltd v Peterson [2011] FCAFC 128

Appeal from: Peterson v Merck Sharpe & Dohme (Aust) Pty Ltd (No 5) [2010] FCA 605 Application for leave to appeal: Peterson v Merck Sharpe & Dohme (Aust) Pty Ltd [2010] FCA 180

Parties: MERCK SHARP & DOHME (AUSTRALIA) PTY LTD (ACN 000 173 508) v GRAEME ROBERT PETERSON MERCK SHARP & DOHME (AUSTRALIA) PTY LTD (ACN 000 173 508) v 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 VID 451 OF 2006

File numbers: VID 570 of 2010 VID 571 of 2010

Judges: KEANE CJ, BENNETT and GORDON JJ

Date of judgment: 12 October 2011

Catchwords: TORTS – negligence – product liability – prescription medicine for relief of inflammation – side-effects – whether medicine caused or contributed to cardiovascular disease – content of duty of care – state of scientific uncertainty as to side-effects of medicine – state of scientific uncertainty as to plausibility of scientific hypothesis TORTS – negligence – product liability – causation – prescription medicine for relief of inflammation – side-effects – whether medicine materially contributed to respondent's heart attack – whether respondent's consumption of medicine was a necessary precondition for occurrence of heart attack – interpretation and application of epidemiological evidence as a strand in the cable of circumstantial proof of causation – whether respondent established a causative link between cardiovascular events and the consumption of medicine TORTS – negligence – product liability – prescription medicine for relief of inflammation – side-effects – legislation establishing minimum safety standards for the availability and use of regulated medicines – whether legislation intended to abrogate the common law rights of individual consumers TRADE PRACTICES – misleading or deceptive conduct – prescription medicine for relief of inflammation associated with doubling of risk of heart attack – side-effects – whether manufacturer knew or ought to have known of increased risk – whether manufacturer negligently failed to warn of risk and represented safety of medicine – whether manufacturer took reasonable steps to ensure medical practitioners were sufficiently informed of clinical trials presenting signal of cardiovascular risk – whether doctors, pharmacists, health care professionals and the public were adequately warned of risk – whether amendment to "Product Information" sufficient – whether manufacturer entitled to assume that a medical practitioner would rely on amended "Product Information" – whether respondent would have declined to take medicine if appropriately warned of risk – whether respondent's doctor relied on conduct of corporation in prescribing medicine to him – whether respondent's doctor would have chosen not to prescribe medicine – whether respondent's doctor would have prescribed medicine in any event TRADE PRACTICES – unsuitable goods – prescription medicine for relief of inflammation associated with doubling of risk of heart attack – whether respondent made purpose of acquiring medicine known to manufacturer – whether medicine not reasonably fit for purpose – substantive and procedural issues – whether purpose made known by respondent was a purpose properly to be identified – whether demonstrating an increase in risk alone proves unfitness for purpose TRADE PRACTICES – goods of unmerchantable quality – prescription medicine for relief of inflammation associated with doubling of risk of heart attack – whether respondent suffered loss by reason that medicine was not of merchantable quality – whether medicine not fit for purpose for which goods of that kind commonly bought and as was reasonable to expect TRADE PRACTICES – defective goods – prescription medicine for relief of inflammation associated with doubling of risk of heart attack – whether medicine defective – whether safety of medicine not such as persons generally entitled to expect – whether respondent suffered injury because of defect – state of the art defence – whether state of scientific knowledge not such as to enable defect to be discovered