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Hastings v Finsbury and Stryker [2022] UKSC 19

The Supreme Court has handed down judgment in the latest in a series of claims arising out of metal-on-metal (“MoM”) hip prostheses.

The facts and decision at first instance

Mr Hastings received a Mitch-Accolade total hip replacement (“THR”) which required revision after 3 years. He brought a claim in Scotland under the Consumer Protection Act 1987 (“CPA”) alleging that the THR was defective.

It was common ground that:

    1. The fact of revision alone did not render the product defective: an inherent feature of all hip prostheses is that some will require revision within 10 years.
    2. On the (agreed) expert statistical evidence the reported revision rates for the THR based on data from various joint registries was unreliable. Therefore, Mr Hastings could not prove with statistics that his THR had an unacceptably high revision rate.

Mr Hastings’ case on defect had two limbs:

    1. He sought to demonstrate various design flaws in the product.
    2. He argued that there was prima facie evidence that the THR was defective and this was sufficient to establish a defect unless rebutted by the Defenders. He relied upon (a) expressions of professional concern by the orthopaedic community, (b) the conduct of the respondents in withdrawing the MITCH-Accolade product from the market and (c) the notices and alerts issued by regulators and by the respondents.

The Lord Ordinary heard expert engineering and statistical evidence and considered the agreed statistical evidence. He rejected both Mr Hastings’ arguments. As to the second limb based on the ‘prima facie’ evidence, the Lord Ordinary agreed with the Defenders that the prima facie case did not survive scrutiny. First, the notices and alerts were based on statistics which were unreliable. Second, the THR was withdrawn from the market a result of commercial considerations. Third, although there had been expressions of professional concern about MoM hips generally, there was a huge variation in reported revision rates and there were no concerns were specific to this prosthesis.

Mr Hastings appealed unsuccessfully to the Inner House. He appealed thereafter to the Supreme Court. His appeal was limited to whether he had established a prima facie case of defect which the defenders were unable to rebut.

The Supreme Court decision

The Supreme Court refused to interfere with the Lord Ordinary’s findings of fact and dismissed the appeal.

Although primarily a fact-specific decision, this is the first time that the CPA has been considered by the Supreme Court. In what will have wider significance for practitioners, the Court summarised the basic principles applicable to the issue of defect under the CPA. In a key paragraph, Lord Lloyd-Jones summarised the principles as follows:

“15.   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:

(1) 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.

(2) 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.

(3) 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.

(4) 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 the market or has come to light subsequently.

(5) The burden of proof is on the consumer to establish a defect and a causal link to the injury. The standard and means of proof are matters for national law, subject to the principle of effectiveness.

(See Wilkes v DePuy International Ltd [2016] EWHC 3096 (QB); [2018] QB 627, paras 66, 76, 96 per Hickinbottom J; Gee v DePuy International Ltd, The DePuy Pinnacle Metal on Metal Hip Litigation [2018] EWHC 1208 (QB), paras 84-86, 98, 139-141 per Andrews J; W v Sanofi Pasteur MSD SNC (Case C-621/15) [2017] 4 WLR 171 at paras 29, 37-38.)”

Having cited those principles, Lord Lloyd-Jones went on to apply them in the Court’s subsequent analysis. Some caution is required as the decision does not contain a detailed analysis of the jurisprudence on the issue of “defect” under the CPA. However, the Court’s citation with apparent approval of this principles gives comfort that the judgments in Wilkes and Gee sets out the correct approach to defect under the CPA.

Alex Antelme KC and David Myhill appeared with Advocates Kenny McBrearty KC and Ewen Campbell on behalf of Finsbury and Stryker.

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