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Product liability: Allen & Ors v Depuy International Ltd

In the recent High Court case of Allen & Ors v Depuy International Ltd (2014), Stewart J considered the application of the Rome II Regulation (“Rome II”), the Private International Law (Miscellaneous Provisions) Act 1995 (“PILA”) and the territorial scope of the Consumer Protection Act 1987 (“CPA”), in relation to a number of product liability claims that had resulted in the claimants sustaining personal injury. 

Background

The case concerned claims by non-European Union (“EU”) residents, arising out of prosthetic hip implants that were alleged to be defective. The devices had been manufactured in the UK by an English company.

Each of the claimants had suffered adverse side-effects from the hip implants.  The claim involved ten sample claimants, representing a cross-section of a few hundred overseas residents whose claims had been stayed pending a ruling on preliminary issues in the sample claims.

Whilst the claimants had received their prostheses in New Zealand, Australia and South Africa, they chose to issue proceedings in England, being the defendant’s country of domicile.

The claimants argued that the law of England and Wales should apply to their claims and that they should be entitled to rely on the CPA.  The defendant asserted that “local law” should be applied to each claim and that the test for deciding the relevant country should be where the claimant had either; (a) first suffered injury, or (b) where the claimant had received their implant.  If the defendant’s test was the correct test, the relevant country would not be England for any of the cases.

In the circumstances, it was crucial for the court to determine which country’s law should apply.

In tort where the “events giving rise to damage” (“EGRD”) occur after 11 January 2009, then article 31 of Rome II would dictate under which country’s law the cases should be tried. In the event that the EGRD was before 11 January 2009, then the Private International Law (Miscellaneous Provisions) Act would apply as the relevant legislation.

Issues

The preliminary issues to be determined were:

  • Whether, for the purposes of article 31 of Rome II, the event giving rise to damage (“EGRD”) in each case occurred before 11 January 2009 (by which time all the prostheses had been manufactured, distributed and implanted) or whether the EGRD was after that date; and

  • If the date of the EGRD occurred before 11 January 2009, what was the law applicable to that claim; and

  • In the event that English law applied to any of the claims, whether the CPA applied.

Rome II and events giving rise to damage

The Judge held that the EGRD should be the date of either:

  • the manufacture or distribution of the defective prostheses; but if he was wrong about that then

  • the date of implantation was the date of the EGRD.

All of these key dates occurred before 11 January 2009 and accordingly, the Judge found that Rome II did not apply and, as a consequence, PILA governed the determination of applicable law as it was the effective legislation before the introduction of Rome II.

Private International Law (Miscellaneous Provisions) Act 1995

The issue of applicable law in a product liability claim is not one that had previously been considered by the courts under this legislation.

The general rule under section 11 of PILA is that the applicable law is that of the country where the injury was sustained. However, under section 12(2) of PILA, the general rule can be displaced in exceptional cases and the claimants argued that the law should be displaced so that the applicable law would be the law of England and Wales.

After identifying and considering all of the factors connecting the tort to different locations, the Judge found no good reason to displace the applicable law, save in one case where the marketing, implementation and revision surgery all took place in New Zealand and, therefore the Judge held that it would be more appropriate for New Zealand law to apply.

Consumer Protection Act 1987

The final question for the Court to consider was; in the event that English and Welsh law had been applicable, whether the CPA extended to injuries caused outside the UK, EU or European Economic Area (“EEA”).

The Judge concluded that there was nothing in the language of the CPA to suggest that it should extend to injuries outside the UK/EU/EEA. In this case, the claimants were all non-EEA residents who suffered injury outside the EEA, and the products were supplied and marketed outside the EEA.  As a result, the Judge concluded that, even if the applicable law was the law of England and Wales, the claims fell outside of the territorial scope of the CPA.

Conclusion

  • If the applicable law in this case had been held to be the law of England and Wales, there undoubtedly would have been a number of benefits to the claimants, not least the ease in bringing multiple generic claims under one law.

  • In addition, one of the main reasons why the South African claimants had sought to apply the law of England and Wales and the CPA was because protection akin to the EU Product Liability Directive/CPA only came into force in South Africa in 2010 and as a result the South African claimants would have to prove negligence in order to succeed in their claims (rather than being able to rely upon the provisions of the CPA).    

The case provides welcome clarity for UK product manufacturers by confirming that individuals who suffer injury outside of the EEA, as a result of a product manufactured in the UK, have no right to sue under the CPA, even if English law did apply.  The case also confirms that for the purpose of Rome II, the EGRD is the date that the product is released by the manufacturer or, at the latest, the date when it is supplied to the claimant. 

Contact

For further information, please contact Debbie Hobbs, Associate on 020 7280 8936 or John Groome, Partner on 020 7280 8832.

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This information is intended as a general discussion surrounding the topics covered and is for guidance purposes only. It does not constitute legal advice and should not be regarded as a substitute for taking legal advice. DWF is not responsible for any activity undertaken based on this information.

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