Wilkes v Depuy International Ltd [2016] EWHC 3096

Key point

  • This case is the leading case on the application of the Consumer Protection Act 1987, in particular that the distinction between standard and non-standard products should be rejected, however, the consider the points in the commentary

Facts

  • C had undergone a surgery to insert an artificial left hip joint made up of metal components manufactured by D
  • The design caused a fracture of the artificial joint
  • C sued D under the Consumer Protection Act 1987

Held (High Court)

  • D is not liable, the artificial hip joint is not defective

Hickinbottom J

Strict liability

  • The test for defectiveness under s3(1) Consumer Protection Act 1987 is strict liability
  • While negligence focuses upon the acts and omissions of those involved in production, the Act focuses on the condition of the product itself

Assessment of level of safety for standard products

  • The level of safety is a matter of law, not actual individual or general expectation, it is what people are entitled to expect
  • Safety is inherently and necessarily a relative concept; it involves balancing of risks and potential benefits
  • Relevant circumstances to be considered include:
    • Potential utility of risk
    • Financial cost
    • Avoidability (‘the ease and extent to which a risk can be eliminated or mitigated’)
    • Compliance with industry or regulatory standards

Current case

  • The product was not defective
  • Factors considered include:
    • Utility: an alternative design proposed by C was less comfortable
    • Compliance with regulatory and industry standard: the joint was compliant with applicable British Standards and received regulatory approvals
    • Warning of risk: sufficient
  • Comparable products had the same design

Departures from A v National Blood Authority

  • The first question of identifying the harmful characteristic conflates two distinct issues: whether there was a defect and if the defect caused the harm
  • Burton J based his judgment on the EC Directive and not the CPA, in the future the focus should be on the CPA
  • Risks and benefit to the specific patient should be considered
  • Rejection of classification into standard and non-standard products
    • It was undesirable to over-complicate and over-analyse the defectiveness issue
    • The classification was not mentioned in CPA

Commentary

Nolan (2018) 134 L.Q.R. 176 stated the following:

  • This case can be reconciled with A v National Blood Authority on the ground that this case deals with a standard product while A v National Blood Authority deals with non-standard products
  • The classification into standard and non-standard products should not be rejected, without it no meaningful analysis of defectiveness can be made
  • Global rather than specific risks and benefits should be taken into account since the question is not whether the specific product but the whole range of product is defective