Legal History: the Russian Flu Pandemic brought us Carlill – what will the Birds bring?

Today’s New Scientist contains a fascinating article on the first case I ever read, Carlill v Carbolic Smoke Ball Co.[1893] 1 QB 256. Indeed, it is probably one of the first cases anybody anywhere in the common law world reads because it was one of the few English cases my US students at McGeorge had ever heard of though they would insist on pronouncing the “v” as “versus”. I managed to teach them a few others like the “snail in the bottle case” though they could never see the funny side of R v Collins [1973] QB 100.

The point of the New Scientist article is that it was not just any old flu against which the Carbolic Smoke Ball promised protection but a real killer rather like Spanish flu in 1918 or perhaps (Heaven forbid) avian flu in the not too distant future. According to the New Scientist

“Whole cities came to a standstill. London was especially hard hit. As the flu reached each annual peak, normal life stopped. The postal service ground to a halt, trains stopped running, banks closed. Even courts stopped sitting for lack of judges.”

It indicates the horror that Lord Esher MR had in mind when he said in Ungar v Sugg (1892) 9 RPC 113 that “a man had better have his patent infringed, or have anything happen to him in this world, short of losing all his family by influenza, than have a dispute about a patent.” I had always regarded that dicta as a bit of hyperbole because nobody until now has lost whole families to influenza in my lifetime but of course in the early 1890s people were losing whole families to the bug. Even the heir to the throne, Prince Albert Victor, perished in the pandemic.

The smoke ball must have been the wonder drug, the lifesaver, the only panacea against a life threatening infection. That’s why a solicitor’s wife was prepared to inhale this stuff and it explains why her husband was sufficiently incensed to take the action all the way to the Court of Appeal. I can’t think of any legal history made by the 1918 pandemic and certainly nothing to compare to Carlill springs to mind out of the Asian and Hong Kong flu epidemics that occurred in my lifetime. But I can certainly envisage some scraps over generic antivirals arising out of bird flu.

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About Jane Lambert

I am a barrister specializing in intellectual property, technology, media and entertainment and competition law. I specialize in helping SME (small and medium enterprises) protect and exploit their investment in brands, design, technology and the arts. SME require intellectual property (legal protection for their intellectual assets) at least as much as big business but their limited means restrict the way they can use it. Looking after such clients wisely requires skills and knowledge which have taken me years to learn.
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