Carlill v Carbolic Smoke Ball Co. (1893)

English Contract Law

Carlill

The primary ingredients to a valid and enforceable contract are (i) offer (ii) acceptance (iii) consideration and (iv) performance; and so on this occasion, the sale of medicinal apparatus proved the undoing of what may have at first blush appeared to be a lucrative use of marketing and false pretence.

In 1891 an advertisement was placed in the Pall Mall Gazette boasting the remedial powers of carbolic smoke balls, that when used in accordance with the manufacturers instructions could prevent users from the effects of influenza, while the exact words used stated that:

“100l reward will be paid by the Carbolic Smoke Ball Company to any person who contracts the increasing epidemic influenza, colds, or any disease caused by taking cold, after having used the ball three times daily for two weeks according to the printed directions supplied with each ball. 1000l is deposited with the Alliance Bank, Regent Street shewing our sincerity in the matter.”

Having decided to take the challenge, the respondent in this appeal purchased and used the product in full observation of the terms of the advert and yet still caught the virus, whereupon she sued for breach of contract.

Following a general examination of  the nature of her claim, the court awarded in favour of the respondent, before the appellants sought to challenge the existence of a contract on grounds that (i) the advert did not constitute a contract, (ii) that non-specificity of persons prevented any binding effect on consumers, (iii) that no acceptance had been notified so as to bind them, and (iv) that no consideration had been made by the respondent so as to warrant a claim of right.

After addressing each point sequentially the Court of Appeal unanimously held that while the advert did not amount to a contract, it did represent an offer to the world entire, therefore those who chose to purchase and use the product as prescribed within the published text were through their participation, demonstrating full and unconditional acceptance of the offer.

Similarly the money spent and time invested when using the smoke balls (an unpleasant experience in itself) further indicated that consideration had been sufficient enough to allow a claim.

In addition the Court upheld the appeal on grounds while noting how unlike arms-length contracts, the all-encompassing design of advertisements were not such that required acceptance for reasons of practicality and that reasonable application of the promises made prevented revocation by the advertisers on grounds that when drafting the advert, they did so upon the risk that profit may, or may not, have become certain, while reminding the parties that:

“Inconvenience sustained by one party at the request of the other is enough to create a consideration.”

R (Rogers) v Swindon NHS Primary Care Trust (2006)

English Medical Law

 

R (Rogers) v Swindon NHS Primary Care Trust
‘In the Pink!’ by Shelley Ashkowski

Irrationality and subsequent weakness of policy become the key ingredients of this appeal case between an individual and local NHS trust when a breast cancer patient is diagnosed with a particular form of metastasis and the consultant responsible for their treatment prescribes a medicine that while proven to significantly prevent the progression of this specific virus, is a brand still yet to undergo full inclusion within the regulatory core of acceptable National Health Service medicines.

After the patient volunteered to self-fund her course of treatment, the spiralling costs quickly proved overwhelming, at which point she applied to her regional Primary Care Trust to request funding (an action not frowned upon in certain circumstances).

When the trust refused to provide any financial assistance on grounds that the drug used was not officially recognised and therefore subject to certain qualifying criteria, the appellant sought to challenge the refusal through judicial review, citing an inherent failure to properly establish sound reasons for non-funding, despite statistical supportive evidence, first-hand testimony and a general position of endorsement by the Secretary of State for Health.

When examined in the Court of Appeal, the emerging facts showed a lack of collective agreement as to exactly why funding for this specific treatment would be prohibited, along with an erring of caution to offer those funds. However this proved a baseless hesitation when held against the ‘ethical over monetary’ line taken by the Health Secretary (and regulatory bodies) and their drive for swift inclusion of this new weapon in the fight against breast cancer.

Upon ruling in favour of the patient, it was advised by the Court that far from being in any position to ‘rubber stamp’ the uninterrupted sponsoring of the appellant’s course of treatment, it was left to the Primary Care Trust and ruling bodies to further refine their criteria for approved patient administration in order that future prescriptions would avoid undue objections during the uptake of other medicines, while holding that:

“People have equal rights of access to health care, but there may be times when some categories of care are given priority in order to address health inequalities in the community.”