30 June 2022

The UK Supreme Court has handed down its judgement in a Scottish appeal in a product liability case: Hastings v Finsbury Orthopaedics Ltd & Stryker UK Ltd, 2022.

The Appellant underwent a metal-on-metal total hip replacement (“MoM THR”) in 2009. The prosthetic hip used was manufactured by the Respondents (each making separate parts). In 2012, the Appellant underwent revision of the left side of his hip implant.  The Appellant claimed that the hip replacement used on him was defective and sought damages from the Respondents.

The legal test

The test of whether a product is defective is whether its safety is not such as persons generally are entitled to expect. The test is not what is expected, but an objective test of “entitled expectation”. It is measured by what the public at large is entitled to expect. In this case, it was agreed by the parties that the test of entitled expectation was whether the level of safety of the product would not be worse than existing non-MoM products that would otherwise have been used.

The burden of proof is on the consumer to establish a defect in the product and a causal link to the injury. 

The Appellant’s case

He claimed that the requirement for revision surgery with the product was earlier than he ought to have been able to reasonably expect, and therefore the product was defective in terms of section 2 of the Consumer Protection Act 1987 (CPA).

Parties had agreed that expert evidence (led by the Respondents and unchallenged) demonstrated that there was no reliable statistical evidence that the revision rate of the particular product was out of line with the relevant industry benchmarks.

It was however claimed by the Appellant that there was prima facie evidence that the product was defective. In particular, (1) expressions of professional concern regarding the product by the orthopaedic community, (2) the conduct of the manufacturers in withdrawing the product from the market and (3) notices and alerts issued by regulators and by the manufacturers prior to the withdrawal.

The Lord Ordinary (Lord Tyre) considered all of these points and determined that the Appellant had failed to prove that the particular product was defective within the terms of the 1987 Act. The Appellant appealed to the Inner House.

The appeal centred on whether the Lord Ordinary had been entitled to conclude that the product was not defective, despite those “prima facie” factors.

The Appeal to the Inner House was refused and he then appealed to the Supreme Court.

He argued firstly that on the principle of effectiveness in EU Law requiring him to prove the existence of a defect using statistical evidence placed an unduly high burden on a consumer.

Secondly, he argued that in terms of the underlying objective of consumer protection under the EU Directive, it must be interpreted so far as possible in favour of the party to whom protection is intended to be given, namely the consumer. He argued that when considering the fair apportionment of risk between consumer and producer, it is not unfair on the manufacturer for the court to draw an inference from their voluntary decision to withdraw their product from the market or to preclude them from taking advantage of their withdrawal.

Thirdly, the Appellant argued that he had been set an impossible task, that of proving his case by statistics that were not available to him on account of the manufacturer’s actions in withdrawing the product from the market. Such circumstances, it was argued, justified a “benevolent” application of the provisions of the CPA.

The Supreme Court decision

In refusing the appeal, the court held that (i) the generalised expressions of concern from orthopaedic professions had concerned MOM hip replacements in general and not the particular products involved in the action. (ii) The Lord Ordinary had found that the withdrawal of the product took place for commercial reasons, and it was not open to the court to draw any adverse inference from this. (iii) While the regulatory notices issued may have been classed as prima facie evidence of a defect at the time they were issued,  they had to be seen in the wider context of all information and statistical evidence available by the time of the Proof, which contradicted the basis upon which the notices had been issued.

The appeal was refused as the Appellant had not established that the Lord Ordinary erred in law, made a finding without any basis in the evidence, or demonstrably misunderstood, or failed to consider, relevant evidence.  As none of those criteria were satisfied in the present case, it was not necessary to consider further a “benevolent interpretation” of the CPA or the EU principles of effectiveness.

Comment

While the decision doesn’t contain anything new, in terms of interpreting the test of product safety under CPA, it will nonetheless be welcomed by product manufacturers and their insurers, as the latest in a line of authorities. It demonstrates that, despite the apparent protection offered to consumers by the CPA, establishing liability is by no means straightforward and the courts are willing to hold claimants to the burden of proving the existence of a defect and causation of their injury. That is not an easy burden to discharge.  It may be that we will see the “benevolent interpretation” argument being made in other claims and it will be interesting to see what the courts say about that, when, in an appropriate case, they require to address it.                

For further information, or to discuss how BTO can assist defenders in product liability claims, please contact: 

Claire White, Partner: cwh@bto.co.uk / 0141 221 8012