Hastings v Finsbury Orthopaedics Ltd and another
| Jurisdiction | Scotland |
| Judge | Lord Lloyd-Jones,Lord Reed,Lord Kitchin,Lord Stephens,Lady Rose |
| Judgment Date | 29 June 2022 |
| Neutral Citation | [2022] UKSC 19 |
| Court | Supreme Court (Scotland) |
[2022] UKSC 19
Lord Reed, President
Lord Kitchin
Lord Stephens
Lady Rose
Lord Lloyd-Jones
Appellant
Robert Weir QC
Robert Milligan QC
Clare Connelly
(Instructed by Thompsons Solicitors (Scotland) (Glasgow))
Respondents (Finsbury Orthopaedics Ltd and Stryker UK Ltd)
Kenny McBrearty QC
Alexander Antelme QC
David Myhill
Ewen Campbell
(Instructed by Kennedys Law LLP (London))
Heard on 28 April 2022
( with whom Lord Reed, Lord Kitchin, Lord Stephens and Lady Rose agree)
In 2009 the appellant, Mr John Hastings, underwent a metal-on-metal (“MoM”) total hip replacement (“THR”). The prosthetic hip used (“the MITCH–Accolade product”) was manufactured by the respondents, each making separate parts. In 2012 the appellant underwent revision of the hip implant in his left hip.
The appellant claims that the replacement hip used in 2009 was defective and seeks damages under section 2 of the Consumer Protection Act 1987 (“the CPA”). The issues in the present case were limited at first instance to the question of whether certain propensities and risks inherent in MoM prosthetic hips rendered the particular combination of components used in the appellant's operation defective within the meaning of section 3 of the CPA.
In the Outer House the Lord Ordinary (Lord Tyre) held after a preliminary proof that the appellant had failed to prove that the particular product was defective. The Inner House (Lord President (Lord Carloway), Lord Menzies and Lord Woolman) refused the appellant's reclaiming motion. The appellant now appeals against the First Division's decision refusing the reclaiming motion. In the event that the appeal is successful the appellant seeks remission of the case to the Lord Ordinary to deal with any remaining issues of liability, causation and quantum.
The CPA implemented the Directive of the Council of the European Communities, dated 25 July 1985 (No 85/374/EEC) on the approximation of the laws, regulations and administrative provisions of the member states concerning liability for defective products (the “Directive”).
The preambles to the Directive provided in relevant part:
“… Whereas approximation of the laws of the member states concerning the liability of the producer for damage caused by the defectiveness of his products is necessary because the existing divergences may distort competition and affect the movement of goods within the common market and entail a differing degree of protection of the consumer against damage caused by a defective product to his health or property;
Whereas liability without fault on the part of the producer is the sole means of adequately solving the problem, peculiar to our age of increasing technicality, of a fair apportionment of the risks inherent in modern technological production; …
Whereas, to protect the physical well-being and property of the consumer, the defectiveness of the product should be determined by reference not to its fitness for use but to the lack of the safety which the public at large is entitled to expect; whereas the safety is assessed by excluding any misuse of the product not reasonable under the circumstances;
Whereas a fair apportionment of risk between the injured person and the producer implies that the producer should be able to free himself from liability if he furnishes proof as to the existence of certain exonerating circumstances; …”
Article 1 provided:
“The producer shall be liable for damage caused by a defect in his product.”
Article 4 provided:
“The injured person shall be required to prove the damage, the defect and the causal relationship between defect and damage.”
Article 6.1 provided:
“A product is defective when it does not provide the safety which a person is entitled to expect, taking all circumstances into account, including:
(a) the presentation of the product;
(b) the use to which it could reasonably be expected that the product would be put;
(c) the time when the product was put into circulation.”
Article 7 provided statutory defences which it was for the producer to prove including:
“(e) that the state of scientific and technical knowledge at the time when he put the product into circulation was not such as to enable the existence of the defect to be discovered; …”
The CPA, as at the relevant date in 2009, provided in relevant part:
“1(1) This Part shall have effect for the purpose of making such provision as is necessary in order to comply with the product liability Directive and shall be construed accordingly.”
“2(1) Subject to the following provisions of this Part, where any damage is caused wholly or partly by a defect in a product, every person to whom subsection (2) below applies shall be liable for the damage.”
It is common ground that the respondents, as producers of the MITCH-Accolade product within section 2(2)(a), are persons within section 2(1).
Section 3 defines “defect” as follows:
“(1) Subject to the following provisions of this section, there is a defect in a product for the purposes of this Part if the safety of the product is not such as persons generally are entitled to expect; and for those purposes ‘ safety’, in relation to a product, shall include safety with respect to products comprised in that product and safety in the context of risks of damage to property, as well as in the context of risks of death or personal injury.
(2) In determining for the purposes of subsection (1) above what persons generally are entitled to expect in relation to a product all the circumstances shall be taken into account, including —
(a) the manner in which, and purposes for which, the product has been marketed, its get-up, the use of any mark in relation to the product and any instructions for, or warnings with respect to, doing or refraining from doing anything with or in relation to the product;
(b) what might reasonably be expected to be done with or in relation to the product; and
(c) the time when the product was supplied by its producer to another;
and nothing in this section shall require a defect to be inferred from the fact alone that the safety of a product which is supplied after that time is greater than the safety of the product in question.”
Section 4 provides for defences and states in relevant part:
“(1) In any civil proceedings by virtue of this Part against any person (‘the person proceeded against’) in respect of a defect in a product it shall be a defence for him to show —
…
(e) that the state of scientific and technical knowledge at the relevant time was not such that a producer of products of the same description as the product in question might be expected to have discovered the defect if it had existed in his products while they were under his control; …”
In advance of the preliminary proof, the parties agreed the following question for the court:
“Does the admitted inherent propensity of metal on metal hip prostheses to shed metal debris through wear in use (including trunnion wear), and the admitted risk that some patients may suffer an adverse reaction to such metal debris that may necessitate early revision, render the product less safe than persons generally were entitled to expect and thus defective within the meaning of the [CPA], taking account of all the circumstances, including the following particular circumstances relied upon by the pursuer:
(1) The knowledge reasonably to be expected of the body of orthopaedic surgeons responsible for advising patients as to the choice of prosthesis, pre and post supply;
(2) The sufficiency of disclosure of the likelihood and severity of such risks of the product within the literature supplied in relation to the product, including the Instructions for Use; in particular having regard to point 1;
(3) Advice and warnings issued by the relevant regulatory authorities post supply;
(4) Advice and warnings issued by the manufacturers and suppliers post supply;
(5) The combination of a titanium alloy stem and a cobalt chromium head;
(6) The date of supply of the product;
(7) The fact that the product is no longer supplied?”
This appeal is unusual in that the legal issues concerning the application of the CPA are largely agreed. The basic principles may be summarised as follows:
(i) The Directive and the CPA have introduced a system of no-fault liability. The concept of “defect”, introduced by the Directive and implemented by the CPA, is an autonomous one, defined in terms of failure of the product to meet an objective standard of safety that the court must evaluate.
(ii) The test of whether a product is defective is whether the safety of the product is not such as persons generally are entitled to expect. The test is not what is expected but one of entitled expectation. The test is an objective one. The standard of safety is measured by what the public at large is entitled to expect.
(iii) What persons generally are entitled to expect is assessed having regard to all the circumstances which are factually or legally relevant to the evaluation of safety, including the matters identified in section 3(2). This must be evaluated at the time when the product was supplied by its producer to another. The assessment of risks associated with a product, which might inform entitled expectations as to its safety, must be done at the time the product is supplied and not with the benefit of hindsight.
(iv) In determining whether a product met the level of safety persons generally were entitled to expect, the court is entitled to have regard to everything now known about it that is relevant to that enquiry, irrespective of whether that information was available at the time it was put on...
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