PRIVATE INTERNATIONAL LAW CASE REVIEW

By syuhadakhair17 | Updated: Aug. 5, 2024, 3:30 p.m.

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HI, I AM NURUL SYUHADA

IM DOING A CASE REVIEW ON Tort-place
of commission of a tort in the conflict of laws

THOMPSON v distillers

Thompson v. Distillers

Thompson v distillers

Where defective goods are manufactured in one country and sold to a wholesaler there for resale in some other country it is clear that one might locate the tort of negligence for jurisdictional purposes as having occurred:-
(1)at the place of manufacture
(2)at the point of original sale
(3)at the point where’re sale, use and damage occurred.
ISSUES OF THE CASE

The appellants are the first defendants, the Distillers Company(Biochemicals) Ltd., who are an English company and not in any sense resident in New South Wales. The plaintiff has proceeded against them by virtue of section 18 of the Act of 1899 in an action against a person not resident within the jurisdiction of the court.
FACTS OF THE CASE

(a) that there is a cause of action which arose within the jurisdiction or in respect of the breach of a contract made within the jurisdiction

b) that service of the writ or notice thereof, as the case may be, was duly effected or that the writ or the notice thereof came to the defendant's knowledge, may, if he thinks fit, by order, permit the plaintiff to proceed to sign final or interlocutory judgment in such manner and subject to such conditions as may be prescribed or as he in all the circumstances may deem fit
The English company is incorporated in Great Britain where it has its registered office and carries on business. As part of its activities it manufactures pharmaceutical preparations.
One of the products manufactured by the English company and distributed in Australia by the Australian company was a sedative and sleep-inducing drug, the principal ingredient of which is thalidomide, this was marketed under the name Distaval. They are sold to the Australian company in the form in which they are to reach the ultimate consumer.
Her mother says that in August 1961 when she was pregnant with the plaintiff her doctor prescribed for her Distaval and this she took. Her child, the plaintiff, was born on April 10, 1962, without arms and with defective eyesight. It is claimed on her behalf that the drug thalidomide has a harmful effect on the foetus of an unborn child during the first three months of pregnancy and that as a result she was born malformed and with defective vision.
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THE COURT HELD THAT

The defendants in Thompson's Case relied strongly on Monro v. American Cyanamid.
For the proposition that the tort of negligence should be regarded as having been committed in the place where the defective goods were produced and originally sold.This view was upheld in the Court of Appeal by Holmes, relied strongly on dicta of Lord Wright in Grant v. Australian Knitting Mills Ltd.

"the thing might never be used; it might be destroyed by accident, or it might be scrapped, or in many ways fail to come into use in the normal way : in other words the duty cannot at the time of manufacture be other than potential or contingent ,and can only become vested by the fact of actual use by a particular person"
. In Distillers Co (Biochemicals) Ltd v Thompson [1971] AC 458, 469 the Judicial Committee held that a UK manufacturer which exported a drug to New South Wales but failed to include a warning of potential side effects committed a tort in New South Wales: "The plaintiff is entitled to complain of the lack of such communication in New South Wales as negligence by the defendant in New South Wales causing injury to the plaintiff there."
AS THE CONCLUSION:
The second-named defendant, the Australian company, is sued as the distributor of the preparation Distaval in New South Wales

PRIVATE INTERNATIONAL LAW CASE REVIEW

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