Defining 'Defect' under the Consumer Protection Act 1987: Analysis of John Hastings v Finsbury Orthopaedics & Stryker UK [2021]
Introduction
The case of John Hastings against (First) Finsbury Orthopaedics Ltd; and (Second) Stryker UK Ltd ([2021] ScotCS CSIH_6) adjudicated by the Scottish Court of Session on January 26, 2021, serves as a pivotal reference point in the interpretation of product defectiveness under the Consumer Protection Act 1987 (CPA 1987). Mr. Hastings, the pursuer, sought redress for a "metal on metal" (MoM) total hip replacement (THR) prosthesis he received in 2009, asserting that the device was defective as per section 3 of the CPA 1987. This commentary delves into the courtroom deliberations, the legal principles applied, significant precedents cited, and the broader implications of the court’s decision.
Summary of the Judgment
Mr. Hastings underwent a MoM THR using the Mitch/Accolade prosthesis, which he claimed was defective due to its propensity to shed metal debris, potentially causing adverse reactions (Adverse Reaction to Metal Debris - ARMD). After a preliminary proof, the Lord Ordinary dismissed the claim, aligning his reasoning with prior English judgments, notably Gee v DePuy International [2018]. The crux of the decision hinged on whether the prosthesis was less safe than what consumers generally expect, considering all pertinent circumstances. The Lord Ordinary concluded that the pursuer failed to prove, on the balance of probabilities, that the prosthesis was defective under the CPA 1987.
Analysis
Precedents Cited
The judgment extensively referenced several key cases to underpin its legal reasoning:
- Gee v DePuy International [2018] Med LR 347: Influenced the decision regarding the assessment of product safety against consumer expectations.
- A v National Blood Authority (No. 1) [2001] 3 All ER 289: Emphasized that safety standards are based on what the public is entitled to expect, not merely actual expectations.
- Wilkes v DePuy International [2018] QB 627: Provided propositions on assessing product condition and safety standards.
- Beshada v Johns Manville Products Corp (1982) 90 NJ 191: Discussed the principles of strict liability and risk allocation.
- W v Sanofi Pasteur [2017] 4 WLR 171: Warned against imposing excessively burdensome evidential requirements on consumers.
- McGlinchey v General Motors [2012] CSIH 91: Addressed the acceptance of expert reports in legal proceedings.
Legal Reasoning
The Lord Ordinary navigated the interplay between the CPA 1987 and the underlying EU Directive on product liability. Key elements of the legal reasoning included:
- Definition of 'Defect': Under section 3(1) of the CPA 1987, a product is defective if its safety is not as persons generally expect. This includes considering design, manufacturing, and information provided with the product.
- Entitled Expectation: The court focused on an objective standard—what the average consumer is entitled to expect—rather than subjective expectations of individual consumers like Mr. Hastings.
- Assessment of Safety: The decision balanced the known benefits of MoM THRs against their risks, considering the absence of evidence that the Mitch/Accolade prosthesis was less safe than contemporary alternatives.
- Role of Expert Testimony: The testimony from experts like Professor Platt, who questioned the reliability of revision rate data, played a critical role in rebutting the prima facie evidence of defect.
- Burden of Proof: Mr. Hastings bore the burden to demonstrate that the prosthesis was defective. The court found that he did not meet this burden.
Impact
This judgment has several significant implications:
- Standard for Defectiveness: Clarifies that to establish a product defect under the CPA 1987, claimants must demonstrate that the product falls below the safety standards that the average consumer is entitled to expect.
- Strict Liability Nuances: Although the CPA 1987 imposes strict liability, the court emphasized the necessity of proving a defect, thereby reinforcing the balance between consumer protection and producer liability.
- Product Surveillance and Defenses: Highlights the importance of reliable post-market surveillance data in substantiating claims of defectiveness and challenges manufacturers’ defenses based on statistical analyses.
- Future Litigation: Sets a precedent for how courts assess medical device failures, particularly in contexts where advanced technical assessments are required, potentially influencing the ease with which future claims can be pursued.
Complex Concepts Simplified
1. Strict Liability
Definition: Under strict liability, a producer can be held liable for damages caused by defective products regardless of negligence or intent.
In this case, while strict liability applies, Mr. Hastings had to prove that the prosthesis was defective. The court determined he did not meet this burden.
2. Prima Facie Evidence
Definition: Evidence that is sufficient to establish a fact or raise a presumption unless disproven.
Initially, the withdrawal of the Mitch/Accolade prosthesis from the market served as prima facie evidence of potential defectiveness. However, the court required more substantial evidence to confirm this claim.
3. Confidence Interval (CI)
Definition: A range of values derived from sample data that is likely to contain the true value of an unknown population parameter.
Professor Platt used CI to argue that the revision rates of the prosthesis fell within acceptable benchmarks, contesting claims of defectiveness.
Conclusion
The judgment in John Hastings v Finsbury Orthopaedics & Stryker UK Ltd underscores the stringent requirements claimants must meet to establish product defectiveness under the Consumer Protection Act 1987. While the court acknowledged the inherent risks associated with MoM THRs and the ensuing regulatory responses, it ultimately held that Mr. Hastings failed to demonstrate that the prosthesis did not meet the safety standards expected by consumers. This decision emphasizes the necessity for robust, comprehensive evidence when alleging defects in regulated products and serves as a crucial reference for future product liability litigations, particularly within the medical device sector.
Comments