Reinforcing Defect Criteria under the Consumer Protection Act: UKSC in Hastings v Finsbury Orthopaedics Ltd & Anor [2022] UKSC 19

Introduction

The case of Hastings v Finsbury Orthopaedics Ltd & Anor ([2022] UKSC 19) marks a significant decision by the United Kingdom Supreme Court concerning product liability under the Consumer Protection Act 1987 (CPA). The appellant, Mr. John Hastings, sought damages after undergoing a metal-on-metal (MoM) total hip replacement (THR) using the MITCH-Accolade product, manufactured by the respondents. The central issue revolved around whether inherent risks and propensities of MoM prosthetic hips rendered the product defective under the CPA.

Summary of the Judgment

The Supreme Court, consisting of Lord Lloyd-Jones and his colleagues, upheld the decision of the Inner House, which had previously dismissed Mr. Hastings' claim. The court found that the appellant failed to prove that the MITCH-Accolade product was defective as per the criteria set out in the CPA. Key factors influencing this decision included insufficient statistical evidence to demonstrate a higher revision rate compared to benchmarks and the inability to establish a direct causal link between the product's design and the adverse outcomes experienced by Mr. Hastings.

Analysis

Precedents Cited

The judgment referenced several pivotal cases and directives that shape the CPA's application:

Wilkes v Depuy International Ltd [2016] EWHC 3096 (QB) – Highlighted the importance of statistical evidence in product liability cases.
Gee v DePuy International Ltd [2018] EWHC 1208 (QB) – Emphasized the necessity of concrete evidence over general concerns in establishing defectiveness.
W v Sanofi Pasteur MSD SNC (Case C-621/15) [2017] 4 WLR 171 – Addressed the evaluation of safety expectations concerning product defects.

These precedents collectively reinforced the need for rigorous evidence to establish product defects, especially in complex medical device cases.

Legal Reasoning

The court's legal reasoning centered on the interpretation and application of the CPA, particularly regarding the definition of a defect and the burden of proof:

Definition of Defect

Under the CPA, a product is considered defective if it does not provide the safety which a person is entitled to expect. This expectation is evaluated objectively, considering all relevant circumstances at the time the product was supplied.

Burden of Proof

The appellant bore the burden to demonstrate that the product was defective and that the defect caused the damages suffered. The court emphasized that this burden could not be shifted or circumvented by relying solely on general warnings or market withdrawal actions.

Statistical Evidence

The appellant's primary argument hinged on statistical evidence suggesting higher revision rates for MoM prostheses. However, the court found Professor Platt's analysis compelling, citing limitations such as incomplete data, small sample sizes, potential confounding factors, and biases inherent in observational data. These limitations undermined the reliability of the statistical claims made by the appellant.

Impact

This judgment reinforces the stringent requirements for establishing product defects under the CPA. It underscores the necessity for robust and reliable statistical evidence to substantiate claims of defectiveness, especially in the context of medical devices where inherent risks are acknowledged. Future cases will likely reference this decision to delineate the boundaries of acceptable evidence and the precise application of the CPA's defect criteria.

Complex Concepts Simplified

Entitled Expectation

Entitled expectation refers to the standard of safety that a product is expected to meet, assessed objectively by considering all relevant circumstances at the time the product was supplied. It is not based on subjective expectations but on what the public generally anticipates in similar products.

Metal-on-Metal (MoM) Prostheses

MoM prostheses are hip replacement devices where both the ball and socket components are made of metal. While they offer certain mechanical benefits, they are associated with risks such as the shedding of metal debris, which can cause adverse tissue reactions and necessitate revision surgeries.

Revision Rate

The revision rate is the frequency at which a medical implant, such as a hip prosthesis, needs to be surgically replaced or corrected. High revision rates can indicate potential defects or issues with the original implant's design or manufacturing.

Consumer Protection Act 1987 (CPA)

The CPA is a UK law that provides consumers with protection against defective products. It implements a system of strict liability, meaning producers can be held liable for damage caused by defects in their products, without the need for the consumer to prove negligence.

Conclusion

The Supreme Court's decision in Hastings v Finsbury Orthopaedics Ltd & Anor serves as a reaffirmation of the rigorous standards required to establish product defects under the CPA. It highlights the judiciary's commitment to ensuring that liability is based on concrete and reliable evidence, particularly in cases involving complex medical devices. This judgment not only clarifies the application of the CPA in the context of product liability but also sets a precedent for future cases to adhere to strict evidentiary standards, thereby balancing consumer protection with the practicalities of proving defects in specialized products.